1958 Lionel Stock Certificate

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					No. 373A00                                                           6A DISTRICT

                     SUPREME COURT OF NORTH CAROLINA

              ****************************************************

STATE OF NORTH CAROLINA              )
                                     )
             v.                      )     From Halifax
                                     )
LIONEL LEWIS ROGERS                  )

              ****************************************************

                       DEFENDANT-APPELLANT‟S BRIEF

              ****************************************************
                                                         SUBJECT INDEX


QUESTIONS PRESENTED ............................................................................................................1

STATEMENT OF THE CASE........................................................................................................3

STATEMENT OF THE FACTS .....................................................................................................4

ARGUMENT .................................................................................................................................21

PRETRIAL ISSUES ......................................................................................................................21

     I.         THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING
                DEFENDANT‟S MOTIONS FOR CHANGE OF VENUE AND FOR
                INDIVIDUAL JURY VOIR DIRE. .............................................................................21

     II.        THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING
                DEFENDANT‟S MOTION TO SUPPRESS AN IMPERMISSIBLY
                SUGGESTIVE PHOTOGRAPHIC IDENTIFICATION. ...........................................32

                     A.          The trial court erred in finding that identification
                                 procedures in this case were not impermissibly suggestive. ......................33

                     B.          The impermissibly suggestive identification of defendant
                                 by Mrs. Johnson created a substantial risk of mistaken
                                 identification. .............................................................................................36

                     C.          The trial court erred in finding that Mrs. Johnson‟s
                                 identification of defendant was independent of the
                                 impermissibly suggestive photo lineup. .....................................................39

     III.       THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
                EXCUSING JURORS FOR CAUSE BASED ON INADEQUATE VOIR
                DIRE. ...........................................................................................................................41

                     A.          The record does not justify the excusal for cause of
                                 prospective juror Lucy Williams. ..............................................................41

                     B.          The record does not justify the excusal of prospective juror
                                 Robert Hudson. ..........................................................................................48

     IV.        THE TRIAL COURT                        COMMITTED REVERSIBLE ERROR BY
                OVERRULING DEFENDANT‟S OBJECTIONS TO THE PROSECUTOR‟S
                RACIALLY DISCRIMINATORY EXERCISE OF PEREMPTORY
                STRIKES. ....................................................................................................................53

     V.         THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
                EXCUSING JURORS ON THE BASIS OF AGE. .....................................................58
                                                                      ii

TRIAL ISSUES .............................................................................................................................62

     VI.        THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING
                TO CONDUCT A HEARING AND RULE ON DEFENDANT‟S MOTION
                FOR    INVESTIGATION                  OF           ALLEGED                   PROSECUTORIAL
                MISCONDUCT. ..........................................................................................................62

     VII.       REVERSIBLE ERROR OCCURRED WHEN THE PROSECUTOR WAS
                ALLOWED TO ATTACK, BADGER, INSULT, AND SHOUT AT
                DEFENDANT‟S SOLE WITNESS, AND TO PRESENT IMPROPER
                EVIDENCE AND ARGUMENT TO THE JURY. .....................................................64

                     A.         The prosecutor‟s improper guilt-phase argument requires
                                new trial. ....................................................................................................66

                     B.         The prosecutor engaged in improper cross-examination
                                during defendant‟s capital sentencing hearing. ..........................................70

                     C.         The prosecutor engaged in improper argument during
                                defendant‟s capital sentencing hearing. .....................................................76

     VIII.      THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GIVING
                THE JURY MULTIPLE INSTRUCTIONS ON THE AGGRAVATING
                FACTOR SPECIFIED IN G.S. 15A-2000(E)(5). ........................................................83

     IX.        THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING
                TO INSTRUCT THE JURY ON THE MITIGATING CIRCUMSTANCES
                SPECIFIED IN G.S. 15A-2000(F)(6)-(7). ...................................................................89

     X.         THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING
                DEFENDANT‟S REQUEST FOR INSTRUCTIONS ON MITIGATING
                CIRCUMSTANCES. ...................................................................................................96

     XI.        REVERSIBLE ERROR OCCURRED WHEN THE TRIAL COURT FAILED
                TO INSTRUCT THE JURY AS REQUESTED WHEN THE FOREMAN
                REPORTED AN 11-1 DEADLOCK AS TO THE SENTENCING
                RECOMMENDATION, AND FAILED TO ENSURE THAT THE JURY‟S
                SENTENCING DEADLOCK WAS NOT BROKEN AS A RESULT OF
                IMPROPER INFLUENCES. .....................................................................................105
                                                                     iii


ADDITIONAL ISSUES ..............................................................................................................110

     XII.      THE STATE CANNOT RAISE A PROCEDURAL BAR IN THE FUTURE
               TO CLAIMS THAT CANNOT BE FULLY AND FAIRLY LITIGATED ON
               DIRECT REVIEW BECAUSE THEY REQUIRE INVESTIGATION AND
               PRESENTATION OF EXTRA-RECORD EVIDENCE. ..........................................110

                     A.        On direct appeal, Defendant cannot fully and fairly litigate
                               possible claims involving discovery of F.B.I. forensic
                               testing. ......................................................................................................112

                     B.        On direct appeal, defendant cannot fully and fairly litigate
                               possible claims involving evidence indicating that he
                               suffered a brain injury as a young child. ..................................................113

     XIII.     THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
               ENTERING JUDGMENT AND SENTENCE ON THE CHARGES OF
               FIRST DEGREE MURDER WHERE THE INDICTMENT WAS
               INSUFFICIENT TO VEST JURISDICTION OVER THAT CHARGE. .................116

     XIV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GIVING
          THE JURY MULTIPLE INSTRUCTIONS ON THE AGGRAVATING
          FACTOR SPECIFIED IN G.S. 15A-2000(E)(3). ......................................................121

     XV.       THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
               INSTRUCTING THE JURY ON THE (E)(9) AGGRAVATING FACTOR. ..........122

     XVI. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING
          TO INSTRUCT JURORS THAT THEY “MUST” RATHER THAN “MAY”
          CONSIDER MITIGATING CIRCUMSTANCES WHEN DECIDING
          ISSUES THREE AND FOUR DURING THEIR JURY DELIBERATIONS. .........123

     XVII. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PLACING
           THE BURDEN OF PROOF ON DEFENDANT TO SATISFY THE JURY
           WITH RESPECT TO MITIGATING CIRCUMSTANCES AND BY
           FAILING TO INSTRUCT JURORS THAT PROOF BY THE
           PREPONDERANCE OF THE EVIDENCE IS PROOF WHICH INDICATES
           THAT IT IS MORE LIKELY THAN NOT THAT A MITIGATING
           CIRCUMSTANCE EXISTS......................................................................................123

     XVIII.THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
            ERRONEOUSLY INSTRUCTING JURORS THEY COULD FIND THAT A
            MITIGATING CIRCUMSTANCE EXISTS AND SIMULTANEOUSLY
            FIND THE MITIGATING CIRCUMSTANCE HAS NO MITIGATING
            VALUE. .....................................................................................................................124
                                                                   iv


     XIX. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
          ERRONEOUSLY INSTRUCTING THE JURY THAT UNANIMITY IS
          REQUIRED TO ANSWER “NO” TO ISSUES I, III, & IV ON THE ISSUES
          AND RECOMMENDATIONS SENTENCING FORM. ..........................................125

     XX.       THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
               SENTENCING DEFENDANT TO DEATH BECAUSE THE DEATH
               PENALTY IS INHERENTLY CRUEL AND UNUSUAL; THE NORTH
               CAROLINA     CAPITAL              SENTENCING                          SCHEME                     IS
               UNCONSTITUTIONALLY VAGUE AND OVERBROAD; AND THE
               DEATH SENTENCE IN THIS CASE WAS NOT SUPPORTED BY THE
               EVIDENCE, WAS DISPROPORTIONATE, AND WAS IMPOSED UNDER
               THE INFLUENCE OF PASSION, PREJUDICE, AND OTHER
               ARBITRARY FACTORS. ........................................................................................126

CONCLUSION ............................................................................................................................126

CERTIFICATE OF FILING AND SERVICE ............................................................................128
                                                                     v


                                               TABLE OF AUTHORITIES


                                                                CASES

Adams v. Texas,
      448 U.S. 38, 65 L.Ed.2d 581 (1980) ................................................................... 48, 99, 100

Ake v. Oklahoma,
       470 U.S. 68, 84 L.Ed.2d 53 (1985) ................................................................................... 70

Apprendi v. New Jersey,
      530 U.S. 446, 147 L.Ed.2d 435 (2000) .......................................................................... 117

Arizona v. Fulminante,
       499 U.S. 279, 113 L.Ed.2d 302 (1991) ..................................................................... 32, 121

Batson v. Kentucky,
       476 U.S. 79, 90 L.Ed.2d 69 (1986) ................................................................................... 53

Bollenbach v. United States,
       326 U.S. 607, 90 L.Ed. 350 (1946) ................................................................................. 108

Boulden v. Holman,
      394 U.S. 478, 22 L.Ed.2d 433 (1969) ............................................................................... 48

Brasfield v. United States,
       272 U.S. 448, 71 L.Ed. 345 (1926) ................................................................................. 108

Burnham v. Superior Court of California,
      495 U.S. 604, 109 L.Ed.2d 631 (1990) ........................................................................... 121

Caldwell v. Mississippi,
      472 U.S. 320, 86 L.Ed.2d 231 (1985) ............................................................................. 100

Carter v. Kentucky,
       450 U.S. 288, 67 L.Ed.2d 641 (1981) ............................................................................. 108

Chapman v. California,
     386 U.S. 18, 17 L.Ed.2d 705 (1967) .......................................................................... passim

Church v. State,
      40 N.C. App. 429, 253 S.E.2d 473 (1979), aff'd, 299 N.C. 399, 263 S.E.2d
      726 (1980) ....................................................................................................................... 120

Cole v. Arkansas,
        333 U.S. 196, 92 L.Ed. 644 (1948) ................................................................................. 118
                                                                vi

Commonwealth v. Clark,
     322 Pa. 321, 185 A.2d 764 (1936) .................................................................................... 77

Dennis v. United States ,
       339 U.S. 162, 94 L.Ed. 734 (1950) .................................................................................. 48

Duncan v. Louisiana,
      391 U.S. 145, 20 L.Ed.2d 491 (1968) ......................................................................... 23, 47

Eddings v. Oklahoma,
      455 U.S. 104, 71 L.Ed.2d 1 (1982) ........................................................................... 90, 125

Engle v. Isaac,
       456 U.S. 107, 71 L.Ed.2d 783 (1982) ........................................................................ passim

Ford v. Wainwright,
       477 U.S. 399, 91 L.Ed.2d 335 (1986) ......................................................................... 62, 88

Foster v. California,
       394 U.S. 440, 22 L.Ed.2d 402 (1969) ............................................................................... 38

Godfrey v. Georgia,
      446 U.S. 420, 64 L.E.2d 398 (1980) ............................................................................... 123

Gregg v. Georgia,
      428 U.S. 153, 49 L.Ed.2d 859 (1976) ............................................................................... 87

Gregory v. Ashcroft,
      501 U.S. 452, 115 L.Ed.2d 410 (1991) ............................................................................. 61

Grey v. Mississippi,
       481 U.S. 648, 95 L.Ed.2d 622 (1987) ............................................................. 31, 46, 47, 58

Griffin v. California,
        380 U.S. 609, 14 L.Ed.2d 106 (1965) ............................................................................... 67

Herring v. United States,
       422 U.S. 853, 45 L.Ed.2d 593 (1975). ............................................................................ 118

Hodgson v. Vermont,
      168 U.S. 262, 42 L.Ed. 461 (1897) ................................................................................. 118

Jackson v. Virginia,
       443 U.S. 307, 61 L.Ed.2d 560 (1979) ............................................................................... 88

Jones v. United States,
       526 U.S. 227, 143 L.Ed.2d 311 (1999) ........................................................................... 117

Jordan v. Lefevre,
       206 F.3d 196 (2d Cir. 2000).............................................................................................. 54
                                                              vii

Leandro v. State,
      346 N.C. 336, 488 S.E.2d 249 (1997) ............................................................................. 119

Lockett v. Ohio,
       438 U.S. 586, 57 L.Ed.2d 973 (1978) ....................................................................... 90, 125

Lockhart v. McCree,
      476 U.S. 162, 90 L.Ed.2d 137 (1986) ............................................................................... 61

M.L.B. v. S.L.J.,
       519 U.S. 102, 136 L.Ed.2d 473 (1996) ........................................................................... 120

Mallard v. Eastern Carolina Regional Housing Authority,
      221 N.C. 334, 20 S.E.2d 281 (1942) ................................................................................. 24

Manson v. Braithwaite,
      432 U.S. 98, 53 L.Ed.2d 140 (1977) ................................................................................. 33

Maynard v. Cartwright,
      486 U.S. 356, 100 L.Ed.2d 372 (1988) ........................................................................... 123

McCarver v. Lee,
     221 F.3d 583 (4th Cir. 2000) .......................................................................................... 111

Morgan v. Illinois,
      504 U.S. 719, 119 L.Ed.2d 492 (1992) ............................................................................. 24

Nelson v. Battle Forest Friends Meeting,
       335 N.C. 133, 436 S.E.2d 122 (1993) ............................................................................... 58

North Carolina v. Pearce,
       395 U.S. 711, 23 L.Ed.2d 656 (1969) ............................................................................... 84

Penry v. Lynaugh,
       492 U.S. 302, 328, 106 L.Ed.2d 256 (1989) ..................................................................... 98

Phelps v. Phelps,
       337 N.C. 344, 446 S.E.2d 17 (1994) ............................................................................... 119

Remmer v. United States,
     350 U.S. 377, 100 L. 435 (1956) .................................................................................... 110

Romer v. Evans,
      517 U.S. 620, 134 L.Ed.2d 855 (1996) ........................................................................... 119

Scott v. McNeal,
        154 U.S. 34, 38 L.Ed. 896 (1893) ................................................................................... 121

Simmons v. United States,
      390 U.S. 377, 19 L.Ed.2d 1247 (1968) ............................................................................. 35
                                                                  viii

Skinner v. Oklahoma,
       316 U.S. 535, 86 L.Ed. 1655 (1942) ............................................................................... 117

State v. Anderson,
        197 Ariz. 314, 4 P.3d 369 (2000)...................................................................................... 47

State v. Banks,
        263 N.C. 784, 140 S.E.2d 318 (1965) ............................................................................. 121

State v. Barts,
        316 N.C. 666, 343 S.E.2d 828 (1986), overruled on other grounds, State v.
        Vandiver,
        321 N.C. 570, 364 S.E.2d 373 (1988) ............................................................................. 109

State v. Blem,
        610 N.W.2d 803 (S.D. 2000) ............................................................................................ 32

State v. Bond,
        345 N.C. 1, 478 S.E.2d 163 (1996), cert. denied, 521 U.S. 1244, 138
        L.Ed.2d 1022 (1997) ......................................................................................................... 84

State v. Boyd,
        311 N.C. 408, 319 S.E.2d 189 (1984), cert. denied, 417 U.S. 1030, 85
        L.Ed.2d 342 (1985) ......................................................................................................... 123

State v. Braswell,
        312 N.C. 553, 324 S.E.2d 241 (1985) ........................................................................ passim

State v. Braxton, ___ N.C. ___,
        531 S.E.2d 428 (2000) .................................................................................................... 122

State v. Brogden,
        334 N.C. 39, 430 S.E.2d 905 (1993) .......................................................................... 46, 99

State v. Cherry,
        298 N.C. 86, 257 S.E.2d 551 (1979) ........................................................................... 63, 84

State v. Davis,
        325 N.C. 607, 386 S.E.2d 418 (1989), cert. denied, 496 U.S. 905, 110
        L.Ed.2d 268 (1990) ........................................................................................................... 85

State v. Earnhardt,
        307 N.C. 62, 296 S.E.2d 649 (1982) ................................................................................. 88

State v. Fair, ___ N.C. ___, ___ S.E.2d ___ (No.
        506A99, October 5, 2001), ........................................................................................ passim
                                                                       ix

State v. Fullwood,
        323 N.C. 371, 373 S.E.2d 518 (1988), sentence vacated on other grounds,
        494 U.S. 1022, 108 L.Ed.2d 602 (1990) ......................................................................... 126

State v. Gay,
        334 N.C. 467, 434 S.E.2d 840 (1993) ............................................................................... 87

State v. Goodman,
        298 N.C. 1, 257 S.E.2d 569 (1979) ................................................................................... 85

State v. Green,
        329 N.C. 686, 406 S.E.2d 852 (1991) ............................................................................. 127

State v. Hare,
        243 N.C. 262, 90 S.E.2d 550 (1955) ............................................................................... 118

State v. Henderson,
        285 N.C. 1, 203 S.E.2d 10 (1974), vacated on other grounds, Henderson
        v. North Carolina,
        428 U.S. 902, 49 L.Ed.2d 1205 (1976) ............................................................................. 35

State v. Holden,
        338 N.C. 394, 450 S.E.2d 878 (1994). .............................................................................. 96

State v. Howell,
        335 N.C. 457, 439 S.E.2d 116 (1994) ............................................................................... 85

State v. Jerrett,
        309 N.C. 239, 307 S.E.2d 339 (1983) .............................................................................. 23

State v. Johnson,
        298 N.C. 47, 257 S.E.2d 597 (1979) ................................................................................. 91

State v. Jordan,
        80 Ariz. 193, 294 P.2d 677 (1956).................................................................................... 77

State v. Keel,
        337 N.C. 469, 447 S.E.2d 748 (1994), cert. denied, 131 L.Ed.2d 147
        (1995) .............................................................................................................................. 127

State v. King,
        353 N.C. 457, 546 S.E.2d 575 (2001) ............................................................................... 53

State v. Knight,
        282 N.C. 220, 192 S.E.2d 283 (1972) ............................................................................... 33

State v. LaMere,
        298 Mont. 358, 2 P.3d 204 (2000) .................................................................................... 32
                                                                  x

State v. Lee,
        335 N.C. 244, 439 S.E.2d 547, cert. denied, 130 L.Ed.2d 162 (1994) ........................... 124

State v. Lowe,
        295 N.C. 596, 247 S.E.2d 878 (1978) ............................................................................. 117

State v. McCall,
        286 N.C. 472, 212 S.E.2d 132 (1975) ............................................................................... 66

State v. Mitchell,
        353 N.C. 309, 543 S.E.2d 830 (2001) ............................................................................... 66

State v. Montgomery,
        331 N.C. 559, 417 S.E.2d 742 (1992)............................................................................... 58

State v. Moseley,
        338 N.C. 1, 449 S.E.2d 412 (1994), cert. denied, 514 U.S. 1091, 131
        L.Ed.2d 738 (1995) ................................................................................................... 84, 122

State v. Muskus,
        158 Ohio St. 276, 109 N.E.2d 15 (1952) .......................................................................... 77

State v. Neville,
        108 N.C. App. 330, 423 S.E.2d 496 (1992) .................................................................... 121

State v. Nobles,
        350 N.C. 483, 515 S.E.2d 885 (1999) ............................................................................... 61

State v. Odom,
        307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) ............................................................. 124

State v. Odom,
        307 N.C. 655, 300 S.E.2d 375 (1983) ........................................................................ passim

State v. Payne,
        328 N.C. 377, 402 S.E.2d 582 (1991) ............................................................................... 92

State v. Payne,
        337 N.C. 505, 448 S.E.2d 93 (1994), cert. denied, 131 L.Ed.2d 292 (1995) ................. 125

State v. Pinchback,
        140 N.C. App. 512, 537 S.E.2d 222 (2000) ...................................................................... 33

State v. Quesinberry,
        319 N.C. 228, 354 S.E.2d 446 (1987). .............................................................................. 84

State v. Quick,
        337 N.C. 359, 446 S.E.2d 535 (1994) ............................................................................... 91
                                                                       xi

State v. Roberts,
        243 N.C. 619, 91 S.E.2d 589 (1956) ................................................................................. 66

State v. Sanderson,
        336 N.C. 1, 442 S.E.2d 33 (1994) ..................................................................................... 65

State v. Smith,
        278 N.C. 476, 180 S.E.2d 7 (1971) ................................................................................... 33

State v. Smith,
        328 N.C. 99, 400 S.E.2d 712 (1991) ................................................................................. 54

State v. Smith,
        351 N.C. 251, 524 S.E.2d 28 (2000) ................................................................................. 77

State v. Smith,
        352 N.C. 531, 532 S.E.2d 773 (2000), cert. denied, ___ U.S. ___, 149
        L.Ed.2d 360 (2001). .......................................................................................................... 41

State v. Squire,
        292 N.C. 494, 234 S.E.2d 563, cert. denied, 434 U.S. 998, 54 L.ed.2d 493
        (1977). ............................................................................................................................. 120

State v. Stokes,
        308 N.C. 634, 304 S.E.2d 184 (1983) ............................................................................... 90

State v. Sturdivant,
        304 N.C. 293, 283 S.E.2d 719 (1981) ............................................................................. 118

State v. Thomas,
        344 N.C. 639, 477 S.E.2d 450 (1996) ......................................................................... 23, 47

State v. Thomas,
        350 N.C. 315, 514 S.E.2d 486 (1999) ............................................................................. 126

State v. Tibbetts,
        299 A.2d 883 (Me. 1973) .................................................................................................. 66

State v. Trull, 349 N.C. 428, 509 S.E.2d 178 (1998), cert. denied, 528 U.S. 835,
        145 L.Ed.2d 80 (1999) ...................................................................................................... 84

State v. Vereen,
        312 N.C. 499, 324 S.E.2d 250 (1985) ............................................................................... 85

State v. Vickers,
        306 N.C. 90, 291 S.E.2d 599 (1982) ............................................................................... 111
                                                                    xii

State v. Wallace,
        351 N.C. 481, 528 S.E.2d 326, cert. denied, 531 U.S. 1018, 148 L.Ed.2d
        498 (2000) ................................................................................................................. 25, 118

State v. Ward, ___ N.C. ___, ___ S.E.2d ___ (No.
        68A99, November 9, 2001) .............................................................................................. 66

State v. Warren,
        289 N.C. 551, 223 S.E.2d 317 (1976) ........................................................................ passim

State v. Whiteside,
        325 N.C. 911, 383 S.E.2d 911 (1989) ............................................................................. 120

State v. Williams,
        304 N.C. 394, 284 S.E.2d 437 (1981), cert. denied, 456 U.S. 932, 72
        L.Ed.2d 450 (1982) ........................................................................................................... 88

State v. Williams,
        317 N.C. 474, 346 S.E.2d 405 (1986) ............................................................................... 88

State v. Williams,
        339 N.C. 1, 452 S.E.2d 245 (1994), cert. denied, 516 U.S. 833, 133
        L.Ed.2d 61 (1995). ............................................................................................................ 41

State v. Wilson,
        322 N.C. 117, 367 S.E.2d 589 (1988) ............................................................................... 90

State v. Yancey,
        291 N.C. 656, 231 S.E.2d 637 (1977) ............................................................................... 32

State v. Zuniga,
        348 N.C. 214, 498 S.E.2d 611 (1998) ............................................................................... 90

Stovall v. Denno,
        388 U.S. 293, 18 L.Ed.2d 1199 (1967) ............................................................................. 33

Strickland v. Washington,
        466 U.S. 668, 80 L.Ed.2d 674 (1984) ........................................................................ passim

Taylor v. Kentucky,
       436 U.S. 478, 56 L.Ed.2d 468 (1978). ............................................................................ 105

Taylor v. Louisiana,
       419 U.S. 522, 42 L.Ed.2d 690 (1975). .............................................................................. 61

Trop v. Dulles,
       356 U.S. 86, 2 L.Ed.2d 30 (1958) ..................................................................................... 99
                                                                    xiii

Tumey v. Ohio,
      273 U.S. 510, 71 L.Ed.2d 749 (1927) ......................................................................... 23, 47

United States v. Escobar De Bright,
       742 F.2d 1196, 1201-1202 (9th Cir. 1984). ...................................................................... 96

Valdez v. People,
       966 P.2d 587 (Colo. 2000) ................................................................................................ 55

Wainwright v. Witt,
      469 U.S. 412, 83 L.Ed.2d 841 (1985). ............................................................................. 48

Witherspoon v. Illinois,
       391 U.S. 510, 520 n.15, 20 L.Ed.2d 776 (1968) ................................................... 23, 47, 99

Zant v. Stephens,
        462 U.S. 862, 77 L.Ed.2d 235 (1982) ............................................................................... 83

                                                             STATUTES

N.C. Gen. Stat. § 7A-450(b) ......................................................................................................... 70

N.C. Gen. Stat.§ 7A-451 ............................................................................................................. 112

N.C. Gen. Stat. § 8-54 ................................................................................................................... 66

N.C. Gen. Stat. § 9-3 ..................................................................................................................... 59

N.C. Gen. Stat. § 9-6(a) ................................................................................................................ 59

N.C. Gen. Stat. § 9-6.1 .................................................................................................................. 59

N.C. Gen. Stat. § 9-14 ................................................................................................................. 100

N.C. Gen. Stat. § 14-17 ............................................................................................................... 117

N.C. Gen. Stat. § 15-144 ............................................................................................................. 117

N.C. Gen. Stat. § 15A-924 .......................................................................................................... 118

N.C. Gen. Stat. § 15A-924(a)(5) ................................................................................................ 121

N.C. Gen. Stat. § 15A-957 ............................................................................................................ 21

N.C. Gen. Stat. § 15A-1212(9) ..................................................................................................... 46

N.C. Gen. Stat. § 15A-1230(a) ..................................................................................................... 65

N.C. Gen. Stat. § 15A-1235(b)(1)............................................................................................... 109
                                                                     xiv

N.C. Gen. Stat. § 15A-1235(b) (2).............................................................................................. 109

N.C. Gen. Stat. § 15A-1235(b) (4).............................................................................................. 109

N.C. Gen. Stat. § 15A-1235(c) ................................................................................................... 109

N.C. Gen. Stat.§ 15A-1411 et seq. .............................................................................................. 111

N.C. Gen. Stat. § 15A-1443(a) ..................................................................................................... 76

N.C. Gen. Stat. § 15A-1443(b) .............................................................................................. passim

N.C. Gen. Stat. § 15A-2000 ........................................................................................................ 126

N.C. Gen. Stat. § 15A-2000(b) ............................................................................................. 90, 101

N.C. Gen. Stat. § 15A-2000(d)(2)................................................................................................. 88

N.C. Gen. Stat. § 15A-2000(e) ................................................................................................... 101

N.C. Gen. Stat. § 15A-2000(e)(3) ................................................................................................. 91

N.C. Gen. Stat. § 15A-2000(e)(5) ........................................................................................... 85, 91

N.C. Gen. Stat. § 15A-2000(e) (9) ................................................................................................ 91

N.C. Gen. Stat. § 15A-2000(f) .................................................................................................... 101

N.C. Gen. Stat. § 15A-2000(f)(2) ................................................................................................. 80

N.C. Gen. Stat. § 15A-2000(f)(6) ................................................................................................. 90

N.C. Gen. Stat. § 15A-2000(f )(7) ................................................................................................ 90

N.C. Gen. Stat. § 15A-2000(f) (9) ........................................................................................ 91, 101

N.C. Patt. Jur. Inst. (Crim.) 106.10 ............................................................................................. 104

N.C. Patt. Jur. Inst. (Crim.) 150.10 ............................................................................................... 87

N.C. R. Evid. 401 .......................................................................................................................... 76

N.C. R. App. Proc. 2 .............................................................................................................. passim

N.C. R. App. Proc. 29(b) ............................................................................................................ 112

N.C. R. App. Proc. 37(a) ............................................................................................................. 112
                                                                   xv




                                                 OTHER AUTHORITIES

American Psychiatric Association, Diagnostic and Statistical Manual of Mental
     Disorders (4th Ed., Text Revision 2000) .......................................................................... 93

William J. Bowers, Marla Sandys, & Benjamin D. Steiner, “Foreclosed
       Impartiality in Capital Sentencing: Jurors‟ Predispositions, Guilt-trial
       Experience, and Premature Decision-Making,” 83 Cornell L. Rev. 1476,
       (1998) ............................................................................................................ 30, 31, 47, 102

John C. Brigham and Paul Barkowitz, John C. Brigham and Paul Barkowitz, “Do
       „They All Look Alike‟: The Effect of Race, Sex, Experience and
       Attitudes on the Ability to Recognize Faces,” 8 J. Applied Soc.
       Psychology 306 (1978) ..................................................................................................... 36

Kenneth A. Deffenbacher, “Eyewitness Accuracy and Confidence: Can We Infer
      Anything About Their Relationship?,” 4 Law & Hum. Behav. 243 (1980)..................... 36

James C. Drennan and Miriam S. Saxon, A Manual for North Carolina Jury
      Commissioners (1993) ...................................................................................................... 60

Theodore Eisenberg & Martin T. Wells, “Deadly Confusion: Juror Instruction in
      Capital Cases,” 79 Cornell L. Rev. 1 (1993) ................................................................... 103

William S. Geimer, “Law and Reality in the Capital Penalty Trial,” 18 N.Y.U.
       Rev. L. & Soc. Change 273 (1990) ................................................................................. 102

Joseph L. Hoffman, “Where‟s the Buck? – Juror Misperception of Sentencing
       Responsibility in Death Penalty Cases,” 70 Ind. L. J. 1137 (1995) ................................ 100

Sheri Lynn Johnson, “Cross-Racial Identification Errors in Criminal Cases,” 69
       Cornell L. Rev. 934 (1984) ............................................................................................... 36

James Luginbuhl and Julia Howe, “Discretion in Capital Sentencing Instructions:
       Guided or Misguided?,” 70 Ind. L. J. 1161 (1995) ................................................... 31, 102

Evan J. Mandery, “Due Process Considerations of In-Court Identifications,” 60
       Albany L. Rev. 389 (1996) ................................................................................................ 38

North Carolina General Court of Justice, Administrative Manual for Chief District
       Court Judges (1994) .......................................................................................................... 60

Benjamin E. Rosenberg, “Rethinking the Right to Due Process in Connection
      with Pretrial Identification Procedures: An Analysis and a Proposal,” 79
      Ky. L.J. 259 (1991) ........................................................................................................... 36
                                                                   xvi

State of North Carolina Courts Commission, Report of the Courts Commission to
        the North Carolina General Assembly (1967) .................................................................. 59

State of North Carolina Courts Commission, Report of the Courts Commission to
        the North Carolina General Assembly (1969) .................................................................. 59

Carol S. Steiker & Jordan M. Steiker, “Sober Second Thoughts: Reflection on
       Two Decades of Constitutional Regulation of Capital Punishment,” 109
       Harv. L. Rev. 355 (1995) .................................................................................................. 98

Isaac Unah and John Charles Boger, “Race and the Death Penalty in North
       Carolina: An Empirical Analysis, 1993-97 (April 16, 2001)........................................... 68

United States Bureau of the Census, <http://quickfacts.
       census.gov/qfd/states/37/37083.html>.............................................................................. 24

Robert Weisberg, “Deregulating Death,” 1983 Sup. Ct. Rev. 305.............................................. 100

Gary L. Wells and Donna M. Murray, “Eyewitness Confidence,” in Eyewitness
       Testimony 155 (Gary L. Wells and Elizabeth F. Loftus, eds., 1984) ................................ 36

                                         CONSTITUTIONAL PROVISIONS

N.C. Const. Art. I, § 18 .............................................................................................................. 123

N.C. Const. Art. I, § 19 ......................................................................................................... passim

N.C. Const. Art. I, § 27 .......................................................................................................... passim

U.S. Const. Amend. V ........................................................................................................... passim

U.S. Const. Amend. VI .......................................................................................................... passim

U.S. Const. Amend. VIII ....................................................................................................... passim
No. 373A00                                                   6A DISTRICT

                     SUPREME COURT OF NORTH CAROLINA

              ****************************************************

STATE OF NORTH CAROLINA              )
                                     )
             v.                      )     From Halifax
                                     )
LIONEL LEWIS ROGERS                  )

              ****************************************************

                       DEFENDANT-APPELLANT‟S BRIEF

              ****************************************************

                           QUESTIONS PRESENTED

                               PRETRIAL ISSUES

I.     DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY DENYING
       DEFENDANT‟S MOTIONS FOR A CHANGE OF VENUE AND FOR
       INDIVIDUAL JURY VOIR DIRE?

II.    DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY DENYING
       DEFENDANT‟S MOTION TO SUPPRESS AN IMPERMISSIBLY
       SUGGESTIVE PHOTOGRAPHIC IDENTIFICATION?

III.   DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY EXCUSING
       JURORS FOR CAUSE BASED ON INADEQUATE VOIR DIRE?

IV.    DID THE TRIAL COURT      COMMIT REVERSIBLE ERROR BY
       OVERRULING DEFENDANT‟S OBJECTIONS TO THE PROSECUTOR‟S
       RACIALLY DISCRIMINATORY EXERCISE OF PEREMPTORY STRIKES?

V.     DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY EXCUSING
       JURORS ON THE BASIS OF AGE?

                                 TRIAL ISSUES

VI.    DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY FAILING TO
       CONDUCT A HEARING AND RULE ON DEFENDANT‟S MOTION FOR
       INVESTIGATION OF ALLEGED PROSECUTORIAL MISCONDUCT?
                                    2


VII.    DID REVERSIBLE ERROR OCCUR WHEN THE PROSECUTOR WAS
        ALLOWED TO ATTACK, BADGER, INSULT, AND SHOUT AT
        DEFENDANT‟S SOLE WITNESS AND TO PRESENT INADMISSIBLE
        EVIDENCE AND IMPROPER ARGUMENT TO THE JURY?

VIII.   DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY GIVING THE
        JURY MULTIPLE INSTRUCTIONS ON THE AGGRAVATING FACTOR
        SPECIFIED IN G.S. 15A-2000(E)(5)?

IX.     DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY FAILING TO
        INSTRUCT THE JURY ON THE MITIGATING CIRCUMSTANCES
        SPECIFIED IN G.S. 15A-2000(F)(6)-(7)?

X.      DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY DENYING
        DEFENDANT‟S REQUEST FOR INSTRUCTIONS ON THE JURY‟S DUTIES
        DURING CAPITAL DELIBERATIONS?

XI.     DID REVERSIBLE ERROR OCCUR WHEN THE TRIAL COURT FAILED
        TO INSTRUCT THE JURY AS REQUESTED WHEN THE FOREMAN
        REPORTED AN 11-1 DEADLOCK AS TO THE SENTENCING
        RECOMMENDATION, AND WHEN THE TRIAL COURT FAILED TO
        ENSURE THAT THE JURY‟S SENTENCING DEADLOCK WAS NOT
        BROKEN AS A RESULT OF IMPROPER INFLUENCES?

                           ADDITIONAL ISSUES

XII.    CAN THE STATE RAISE A PROCEDURAL BAR IN THE FUTURE TO
        CLAIMS THAT CANNOT BE FULLY AND FAIRLY LITIGATED ON
        DIRECT REVIEW BECAUSE THEY REQUIRE INVESTIGATION AND
        PRESENTATION OF EXTRA-RECORD EVIDENCE?

XIII.   DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY ENTERING
        JUDGMENT AND SENTENCE ON THE CHARGE OF FIRST DEGREE
        MURDER, WHERE THE INDICTMENT WAS INSUFFICIENT TO VEST
        JURISDICTION OVER THAT CHARGE?

XIV. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY GIVING THE
     JURY MULTIPLE INSTRUCTIONS ON THE AGGRAVATING FACTOR
     SPECIFIED IN G.S. 15A-2000(E)(3)?

XV.     DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY
        INSTRUCTING THE JURY ON THE AGGRAVATING FACTOR SPECIFIED
        IN G.S. 15A-2000(E)(9)?

XVI. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY FAILING TO
     INSTRUCT JURORS THAT THEY “MUST” RATHER THAN “MAY”
     CONSIDER MITIGATING CIRCUMSTANCES WHEN DECIDING ISSUES
     THREE AND FOUR DURING THEIR JURY DELIBERATIONS?
                                               3

XVII. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY PLACING
      THE BURDEN OF PROOF ON DEFENDANT TO SATISFY THE JURY WITH
      RESPECT TO MITIGATING CIRCUMSTANCES AND FAILING TO
      INSTRUCT JURORS THAT PROOF BY THE PREPONDERANCE OF THE
      EVIDENCE IS PROOF WHICH INDICATES THAT IT IS MORE LIKELY
      THAN NOT THAT A MITIGATING CIRCUMSTANCE EXISTS?

XVIII. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY
       ERRONEOUSLY INSTRUCTING JURORS THEY COULD FIND THAT A
       MITIGATING CIRCUMSTANCE EXISTS AND SIMULTANEOUSLY FIND
       THE MITIGATING CIRCUMSTANCE HAS NO MITIGATING VALUE?

XIX. DID THE TRIAL COURT COMMIT PLAIN ERROR BY ERRONEOUSLY
     INSTRUCTING THE JURY THAT UNANIMITY IS REQUIRED TO
     ANSWER “NO” TO ISSUES I, III, & IV ON THE ISSUES AND
     RECOMMENDATIONS SENTENCING FORM?

XX.    DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY
       SENTENCING DEFENDANT TO DEATH BECAUSE THE DEATH
       PENALTY IS INHERENTLY CRUEL AND UNUSUAL; THE NORTH
       CAROLINA      CAPITAL      SENTENCING     SCHEME      IS
       UNCONSTITUTIONALLY VAGUE AND OVERBROAD; AND THE DEATH
       SENTENCE IN THIS CASE WAS NOT SUPPORTED BY THE EVIDENCE,
       WAS DISPROPORTIONATE, AND WAS IMPOSED UNDER THE
       INFLUENCE OF PASSION, PREJUDICE, AND OTHER ARBITRARY
       FACTORS?

                                STATEMENT OF THE CASE

       This case was tried at the March 20, 2000 Criminal Session of Halifax County Superior

Court before Superior Court Judge Thomas D. Haigwood. A jury found defendant guilty of one

count each of first degree burglary, first degree sexual offense, and first-degree murder on the

theories of premeditation and deliberation and felony murder. Rpp. 144-146. Following a

sentencing hearing, the jury found the existence of all five aggravating factors submitted. The

jury also found the existence of two statutory mitigating circumstances, including the “catchall”

circumstance, and 15 of 17 nonstatutory mitigating circumstances submitted.            The jury

recommended a sentence of death on the first-degree murder count. Rpp. 190-195. Defendant

was sentenced accordingly on April 14, 2000. Defendant also received consecutive sentences of

146 to 185 months for the first degree burglary conviction and 480 to 585 months for the first
                                                 4

degree sexual offense conviction. Defendant appealed. This Court granted defendant‟s motion

to bypass the Court of Appeals on the lesser felonies. Rpp. 1, 196-211.


                                STATEMENT OF THE FACTS

        The state‟s evidence tended to show that between 9:15 and 9:30 p.m. on May 11, 1997,

Mrs. Hazel Sechler telephoned her next-door neighbor, Mrs. Irma Johnson. Both women were

elderly. Mrs. Sechler was 88 years old and legally blind. Both women lived alone in their own

homes in Weldon, North Carolina. As the women were talking, the telephone went dead. Mrs.

Johnson tried calling Mrs. Sechler but received no answer. Mrs. Johnson got her keys and

flashlight and went to the door to check on Mrs. Sechler. She saw a man on Mrs. Sechler‟s

porch. At trial, Mrs. Johnson identified this man as defendant. She testified to having identified

defendant on May 13, 1997 in a photo lineup and again at a pretrial hearing in September 1999.

Tpp. 1605, 2392-2393, 2395-2399, 2428; State‟s Exh. 47.


        Mrs. Johnson testified that she saw the man standing near Mrs. Sechler‟s meter boxes in a

blue/green T-shirt and brown or tan pants. The man wore dreadlocks. The man hesitated a

moment, then went into Mrs. Sechler‟s kitchen. Mrs. Johnson called the police. Ten or fifteen

minutes later, Mrs. Johnson saw the man leave. She again telephoned the police to give them

this information. Mrs. Johnson testified that the man had a long object in his left hand that “was

shaped like a knife. It could have been a knife, I don‟t know.” She also testified that she saw

defendant using his left hand to write notes in the courtroom during trial. Tpp. 2400-2402, 2405,

2429.


        Weldon Police Officer H.E. Harris testified that he received a call to go to Mrs. Sechler‟s

house at 9:38 p.m on May 11, 1997. Lt. Roosevelt Greene of the Halifax Sheriff‟s Department

also was called to the scene. Officer Harris found that a door off the back porch appeared to

have been forced open. The telephone wires appeared to have been cut. In an interior hallway,
                                               5

Officer Harris found a cane, a shoe, and red spots that appeared to be blood.   He found Mrs.

Sechler in her bedroom. A dresser drawer was open and a pocketbook lay nearby. Mrs. Sechler

was on the bed, bleeding from the hands and from a deep gash in her throat. She was breathing

with difficulty through a cut in her windpipe. Her nightgown appeared to have been ripped

away. Her underpants were around her ankles. There was some blood on the bed near the

vaginal area. Mrs. Sechler was conscious but unable to speak. She remained so during treatment

at the local hospital and while being airlifted to Duke University Medical Center.        Hand

restraints were used after she attempted to pull out tubes and devices used for treating her

wounds. She was first able to receive medication for pain during the airlift to Duke. Tpp. 1492-

1507, 1603, 1728-30, 1737, 1769, 1821, 1834.


       Mrs. Sechler had a heart attack in the Duke emergency room and died the following

morning. Tpp. 1852, 1856-58. The Medical Examiner testified that the cause of death was two

deep cuts to the throat. Mrs. Sechler had also suffered defensive wounds to the hands and a

small tear and bruising in the vaginal area. Tpp. 2121-23, 2146. Sexual assault samples were

taken and submitted to the F.B.I. State‟s Exh. 77; Tpp. 2156-58, 2190. The state‟s discovery

showed that the samples were “examined for the presence of semen; however, none was found.”

Rpp. 77-87. Supplementary discovery shows that the samples were resubmitted to the F.B.I. on

May 13, 1999. That discovery contained no results from any re-testing. Rpp. 99-102. The

information contained in the state‟s discovery regarding testing on these samples was not

presented to the jury.


       Officer Harris testified that, as a result of what Mrs. Johnson told him, police began

searching for a man in dreadlocks wearing a bluish-green T-shirt and dark pants. Tpp. 1522,

1703. On cross-examination, Officer Harris testified that tracking dogs were brought in before

midnight. The dog handlers were on Mrs. Sechler‟s back porch. They reported to O.K. Clark,
                                                6

who was the Weldon Police Chief at that time. Tpp. 1620-22, 1634-35. Officer Harris assisted

with the investigation until 4:00 a.m., when he went home. He returned to the scene two hours

later. Officer Harris testified that between the time that he arrived at Mrs. Sechler‟s home and

4:00 a.m. when he left, he did not search the surrounding area and did not know of any officers

who did.    Lt. Greene testified that he stayed at the scene for an hour an a half, then started

patrolling the south Weldon area. Interim Police Chief Tim Byers testified that the search of the

area surrounding Mrs. Sechler‟s home was delayed until daybreak. Tpp. 1571-72, 1618-19,

1624, 1716, 1778-79.


       When Officer Harris returned at 6:00 a.m. on May 12, he did search the surrounding area.

He found a bluish-green T-shirt in a nearby alley 131 feet from defendant‟s house. The shirt had

dark spots that appeared to be blood. Tpp. 1524-26, 1582-83, State‟s Exh. 18, 27. On cross-

examination, Officer Harris testified that the houses in the neighborhood were about twenty feet

apart, close enough that one “could probably spit and hit the next house.” Tpp. 1653, 1657-58.

Between the alley where the T-shirt was found and defendant‟s home was the house of a family

named Fleming. Tp. 1656.        A stained pair of Mr. Richard Fleming‟s white shorts was also

found in the alley, about 30 or 40 feet from the T-shirt. Both the T-shirt and the shorts were sent

to the F.B.I. for testing. Tpp. 2677-78, 2694-95, 2708-2709.


       F.B.I. DNA analyst Deborah Hobson testified that the profile obtained from the

bloodstain on the T-shirt matched Mrs. Sechler‟s. The probability of an erroneous random match

was one out of nine hundred sixty million for the white population. Tpp. 2365-66.         Cuttings

from the T-shirt collar showed a mixture of DNA.           Ms. Hobson testified that the major

contributor matched the DNA profile of defendant. The probability of an erroneous random

match was one out of four thousand eight hundred for the African-American population.
                                                 7

Defendant‟s girlfriend, Shirley Boone, could not be excluded as a minor contributor to the

mixture. Tpp. 2368-69.


       On cross-examination, Ms. Hobson testified that the samples were resubmitted for a new,

more powerful type of DNA analysis. Tp. 2376. Discovery filed by the state indicates that this

analysis confirmed that Mrs. Sechler‟s DNA profile matched a bloodstain on the shirt. The

probability of a random false match increased to one in six hundred fifty billion in the white

population. Swabbings from the T-shirt collar, underarm, and upper back contained DNA from

both a male and a female. Under the new, more powerful analysis, the DNA typing results on

these mixed samples were “inconclusive” or not obtained. Rpp. 101-102. Neither the state nor

the defense presented this information to the jury.


        Before the T-shirt was sent to the F.B.I., Officer Harris put it into an unsealed paper bag

and gave it to the evidence custodian, Detective David Foltz. Sheriff‟s Department Captain C.E.

Ward examined it for trace evidence. Captain Ward removed a long Caucasian hair and some

red fibers from the shirt. He packaged these separately and they were submitted to the F.B.I. for

analysis. Tpp. 1671-72, 2005-2006, 2029, 2059, 2182-84; State‟s Exh. 81-82. Because the red

fibers on the T-shirt matched the interior color of a van belonging to defendant‟s neighbor

Richard Fleming, the van was photographed. Hairs from Mr. Fleming‟s dogs were also taken

during the investigation and submitted for forensic testing. Tp. 2077; Rp. 82.


       Forensic analyst Cary Oien reported that he found “two forcibly removed brown Negroid

head hairs” in the material taken from the T-shirt by Captain Ward. Mr. Oien also reported that

these Negroid hairs were consistent with a known head hair taken from Mrs. Sechler. Before

trial, Mr. Oien learned that Mrs. Sechler was white. At trial, he testified that hair becomes “more

Negroid” in character as people age. He also testified that he found no evidence of hair or fiber

transfer between Mrs. Sechler and defendant on other items submitted. These items included
                                                8

Mrs. Sechler‟s nightclothes and bedding and defendant‟s clothing. Rpp. 80, 85-86; Tpp. 2146,

2250-55, 2266, 2271-75.


       Over objection, forensic analyst Constance Fisher testified that she conducted

mitochondrial DNA [“MtDNA”] analysis on a hair submitted by Mr. Oien from the debris found

on the T-shirt. Defendant was excluded as a contributor of the hair. Mrs. Sechler could not be

excluded as a contributor. The MtDNA sequence found in the hair from the T-shirt and Mrs.

Sechler‟s hair is the most common sequence in the available database. It is found in 1 of 380

people of African descent and 74 of 916 Caucasians. Tpp. 2299, 2312-14, 2328. On cross-

examination, Dr. Fisher testified that the first MtDNA analysis was inconclusive and that her

report was based on subsequent analysis with additional samples from Mrs. Sechler. Tpp. 2318-

19.


       Convenience store clerk Beatrice Moore identified herself, defendant, and his girlfriend

on a surveillance videotape taken at the store at 1:45 p.m. on May 11, 1997. The videotape was

in black and white, not in color. Ms. Moore testified that defendant was dressed in a greenish

colored T-shirt and jeans. She testified that on May 15, 1997, Weldon Police Chief O.K. Clark

showed her a T-shirt that was the same or similar to the one found in the alley. She also testified

that the shirt was the same or similar to the one defendant was wearing on May 11. State‟s Exh.

27, 36; Tpp. 1873-75, 1880, 1883-84.        On cross-examination, Ms. Moore admitted telling

defense investigator A.C. Mullis that she did not know what color the shirt was and that it could

have been black or brown. Tpp. 1890-91, 1893.


       Defendant‟s neighbor, Sheree Harvey, testified that on the afternoon of May 11, 1997,

defendant invited her to a cookout. Ms. Harvey testified that defendant wore jeans and a close-

fitting greenish T-shirt.   She also testified that after 9:00 p.m. that evening, defendant‟s

girlfriend, Shirley Boone, came looking for him. The following morning, Ms. Harvey saw
                                                  9

defendant wearing jeans, a red T-shirt, and a hairnet. She testified that he looked “tired like he

had been up all night.” She assumed that he had been up because of the cookout. Ms. Harvey

told defendant that police with dogs had been in her back yard that morning. Defendant asked

her where the dogs had been. On redirect examination, Ms. Harvey testified that the greenish T-

shirt worn by defendant on May 11 was “the same” as the T-shirt found in the alley. Tpp. 1898-

99, 1915-17, 1935; State‟s Exh. 27.


       Jack Newsome testified that at 10:00 p.m. on May 11, 1997, he saw defendant walking

west on Third Street in Weldon. Mr. Newsome testified that it was a cold night. Defendant was

wearing jeans and a T-shirt that “looked like it was white.” Tp. 2471. On cross-examination,

Mr. Newsome testified that he had not been asked to identify any T-shirts in connection with the

case. Tp. 2477.


       Mrs. Sechler‟s neighbor, Irma Johnson, testified that on the night of May 13 th Chief Clark

brought a T-shirt for her to examine. Mrs. Johnson testified that she wasn‟t sure that the color of

the shirt was the same as the one worn by the man she saw on Mrs. Sechler‟s porch. After Chief

Clark moved to Mrs. Sechler‟s porch and held the shirt up in the light, Mrs. Johnson identified it

as the same shirt. She also testified that State‟s Exhibit 27, the T-shirt found in the alley,

appeared to be the same shirt. Tpp. 2403-2404.


       The state‟s discovery indicates that the convenience store videotape was submitted to the

F.B.I. for analysis. The image quality was insufficient to extract any information about the faces

of the individuals in the tape. The image quality was also insufficient to ground any conclusion

“regarding the identification or elimination” of the T-shirt found in the alley, i.e., whether that T-

shirt was the same as, or different from, the one worn by the person in the videotape whom Ms.

Moore identified as defendant. The information about the videotape contained in the state‟s

discovery was not presented to the jury. Rpp. 107-109.
                                               10

        Sidney Powell testified that he lived two doors down from defendant. Over objection,

Mr. Powell testified that when he came home from work on May 13, 1997, defendant and his

girlfriend were in his house and that defendant wanted to stay for two or three days “because the

white folks was looking for him.”     Mr. Powell testified that he (Mr. Powell) left the house

because he was afraid and “went to get somebody to call the Weldon Police.” Tpp. 1940, 1950,

1953.   On cross-examination, Mr. Powell testified that defendant worked for their mutual

landlord and had painted and done repairs on Mr. Powell‟s home. Defendant was supposed to

finish the painting job on May 13. Mr. Powell also admitted that he returned to his home shortly

after leaving defendant and his girlfriend in it. He came back to deliver some wood. Tpp. 1954-

55, 1961-62.


        Between 3:00 and 3:30 p.m. on May 13, 1997, uniformed officers arrived at Mr. Powell‟s

home and took defendant in for questioning. Defendant was asked to show his hands. He was

then handcuffed and transported to the police station in an unmarked police car. On the way to

and from Mr. Powell‟s house, police officers sought to evade a television news crew. Defendant

remained with police officers until 2:00 the next morning. During those hours, defendant was

photographed. He provided blood and hair samples, clothing, and fingernail scrapings to

investigators. His pants, underwear, socks, and shoes were taken. A knife block containing a

cutlery set was taken from his home. One knife was missing from the set. Another set of knives

and some plastic bags were taken from a mini-storage facility. None of these knives were

submitted for forensic testing. Tpp. 1966-67, 1975-75, 2036, 2049, 2052, 2197-98, 2207-2209,

2689-91.


        F.B.I. Agent Richard Ridder testified that he took custody of certain evidence from the

Weldon Police Department and shipped it by Federal Express to the F.B.I. laboratory for testing.

On cross-examination, he testified that he became involved after Congresswoman Sue Myrick
                                                 11

contacted the F.B.I. and requested assistance. He testified that the following additional evidence

was submitted for analysis: fingerprints of Robert Yarborough and Coreatha Mae Arrington;

fiber samples from Richard Fleming‟s van; photographs and hair samples from Mr. Fleming‟s

dogs; and an eleven and a half inch long kitchen knife. Tpp. 2212-18, 2220-21.


       Officer Foltz testified on cross-examination that he recognized the names of Joseph

Avent and Robert Yarborough in connection with a homicide in Bracey, Virginia. Officer Foltz

did not take hair or blood samples or fingerprints from Avent or Yarborough. Tpp. 2039, 2057.

He also testified that he prepared the photo lineup from which Mrs. Johnson identified defendant.

Officer Foltz did not know whether Avent or Yarborough were pictured in the photo lineup.

Officer Foltz testified that photographs of Avent and Yarborough were shown at some point to

Mrs. Johnson. Tpp. 2054, 2056, 2063, 2079.


       Interim Police Chief Tim Byers testified on cross-examination that after assisting with the

investigation at the scene on May 12, he began talking with local informants to see if they had

any information on the case. He testified that Joseph Avent‟s name was familiar but that he did

not recall talking with him. Discovery provided by the state on February 18, 2000, contained a

handwritten statement marked “5-29-97, 1000, Joseph Avent.” The statement describes someone

as a “B/M – brown skinned, late 20s-30 … Approx. 6 ft. 250 pounds.” The statement describes

someone who “hangs in South Weldon” and “smokes a lot of crack.” The statement gives the

further details that the individual “had long dreads but has cut them off and shaved his head.”

The statement says the person was “first seen with dreads about two weeks ago, shaved head.”

The statement also says that the “word is on the strip that Lionel Rogers is not the killer, this guy

keeps bragging about the killing.” Finally, the statement says, “‟Fat Boy‟ says Police had the

right guy & let him go.” The information contained in the state‟s discovery was not presented to

the jury. Rpp. 105-106; Tpp. 1784, 1811-12.
                                                12

       Chief Clark testified that on June 16, 1997, he received a telephone call at the Police

Department. According to Chief Clark, the caller identified himself as defendant. Chief Clark

testified that he recognized defendant‟s voice.        The caller asked that his clothing and

identification be returned to him. Chief Clark explained that the clothes were still at the lab. He

asked the caller whether the request included the green T-shirt. According to Chief Clark, the

caller said, “Yeah, I need that back too.” Chief Clark explained that the shirt had been sent for

testing and would have chemicals on it. He asked whether the caller wanted the shirt washed

before it was returned. The caller said that he would wash it himself. Tpp. 2593-96. On Police

Department letterhead, Chief Clark typed a statement that defendant requested the return of

several items of clothing, including “1-Bluish/green T-shirt, size medium.” Accompanied by up

to six officers, Chief Clark took the statement to defendant‟s home. Chief Clark testified that

defendant initialed each item on the list, signed the form, and had his girlfriend sign the form

also. Tpp. 2600-2602.


       Chief Clark also testified that he followed defendant as he drove a Ryder truck from

Weldon to a mini-storage unit in Gaston, North Carolina. Chief Clark testified that he watched

defendant place items from the truck into the storage unit. Chief Clark identified plastic bags

and knives taken from that unit. He testified that the knives were similar to other knives taken as

evidence in the case. Tpp. 2603-2606; State‟s Exh. 84-91, 120. Chief Clark testified that

defendant was arrested on August 6, 1997 and read his Miranda rights. Chief Clark told

defendant that he knew defendant had killed Mrs. Sechler and that the DNA tests implicated him.

According to Chief Clark, defendant asked to see the green T-shirt, denied wearing a T-shirt on

May 11, 1997, and said he had worn a green sweatshirt all that day. Chief Clark then showed

defendant a photograph of Mrs. Sechler. He told defendant that she was legally blind and would

not have been able to identify him. According to Chief Clark, defendant said, “She didn‟t have

to die.” Tpp. 2627-28, 2663-67, 2669-70.
                                                 13

       On cross-examination, Chief Clark testified that he showed the T-shirt to Mrs. Johnson

and to Beatrice Moore, but that he did not show it to defendant when he was at the police station

on May 13.     He also testified that the items sent to the F.B.I. for analysis included a knife; a

number of latent prints lifted from Mrs. Sechler‟s home; and fingerprints of Robert Yarborough,

who had committed a murder in Bracy, Virginia. With respect to the latent lifts from the scene,

Chief Clark was unaware of any fingerprint identifications made other than those of Mrs. Sechler

and her maid. Chief Clark did not believe that any of the knives presented in evidence was the

knife sent to the F.B.I. for testing. Chief Clark testified that dogs were used to search the area on

several occasions and that local businessmen had offered a reward of several thousand dollars for

information in the case. Tpp. 2671-72, 2680-81, 2684-86, 2690-93, 2698-2700, 2707.


       Thirteen-year-old Dorian Fleming testified that in May 1997 she lived next door to

defendant and his girlfriend in Weldon. There were nine children in the Fleming family. Her

father, Richard Fleming, worked as a truck driver.         Dorian testified that at “2:59” on the

afternoon of May 12, she visited defendant at his home. She testified that he came into the living

room with a bag in his hand similar to the plastic bags taken from the storage unit. She testified

that there was a knife and what she thought was blood in the bag. Dorian described the knife as

between twelve and fourteen inches long. She testified that she told police and an S.B.I. agent

about the knife and drew two pictures of it. She also testified to similarities between the knife

she drew and State‟s Exh. 120, a knife taken from defendant‟s home. According to Dorian, she

watched defendant clean the knife with a washcloth. She testified that she asked him what was

on the blade and he told her that he had dropped it in something. Tpp. 2485-93, 2524-27.


       The trial court held a voir dire hearing on the circumstances under which Dorian drew the

pictures of the knife. On cross-examination in voir dire, Dorian testified that she told her mother

about the knife a few days after she saw it, and talked with Chief Clark about it an hour later.
                                                14

She testified that she drew the larger picture first at the police department. When confronted

with the dates on the two pictures, she admitted that she was mistaken. Tpp. 2504-2509. On

cross-examination before the jury, Dorian testified that in May, 1997, she was in the fifth grade.

She testified that she told her parents about seeing the knife later in the week of May 12th. The

dates written on the pictures she drew were “8-7-97 or 9-7-97” and “8-5-97.” State‟s Exh. 118-

19; Tpp. 2533-38.


       S.B.I. Agent Cheryl McNeill testified that she interviewed Dorian Fleming on August 5,

1997 in Roanoke Rapids. After consulting her notes, Agent McNeill testified to details related

by Dorian during that interview, to which Dorian had not previously testified. These details

included a statement by defendant that he had dropped the knife in some blood on his way home

and a statement by defendant telling Dorian to keep the knife a secret. Dorian drew a picture of

the knife and Agent McNeill dated it.       Tpp. 2562-67.        Chief Clark testified that he also

interviewed Dorian and that she told him she saw a drop of blood drip from the knife onto a table

and that defendant told her to keep it a secret. Tpp. 2625-26.


       Defendant presented no guilt-phase evidence. Following the return of the guilty verdicts,

the state‟s sentencing evidence tended to show that defendant had two prior felony convictions.

In 1993, he was convicted of robbery in Virginia. Bernice Williams testified that during this

incident defendant said he had a gun in his pocket and that she feared for her life. Detective R.E.

Williams testified that defendant confessed to this felony. On cross-examination, Detective

Williams testified that defendant said he did not have a weapon and that the robbery victim did

not indicate that she saw a weapon. The state‟s evidence also tended to show that in 1983

defendant was convicted of breaking and entering in North Carolina. With respect to the latter

conviction, K.W. Thompson testified to statements made by the reported victim of the breaking

and entering. Specifically, Officer Thompson reported that the victim said that the perpetrator
                                                       15

placed a pillow over her head and threatened to kill her if she called the police.                 Tpp. 2963,

2970, 2975, 2979, 2988-89.


          Defendant presented one witness during the sentencing phase, forensic psychiatrist

Nathan Strahl.       Dr. Strahl testified that defendant has alcohol and marijuana dependence, an

anxiety disorder, and three forms of personality disorder: schizoid, narcissistic, and antisocial.

Dr. Strahl testified that personality disorders are ingrained and persistent.                    The schizoid

personality disorder describes one who prefers isolation and becomes angry when others are

perceived as pushing them or invading their space.                  The narcissistic personality disorder

describes one who feels an excessive level of entitlement to things that are desired but not

earned.       The antisocial personality disorder describes a person who does not feel the need to

obey the laws of society. Dr. Strahl testified that, in his medical opinion, defendant‟s personality

disorders resulted from a combination of his genetic makeup and social peer group development.

Dr. Strahl cited medical evidence indicating a genetic basis for personality disorders.

Specifically, he testified, low levels of a neurotransmitter called serotonin were linked with

heightened aggression and inability to control behavior. Tpp. 2999, 3005, 3030-33, 3038-40.


          Dr. Strahl also testified that defendant had been given up for adoption within an hour of

birth. Defendant was one of nine or ten children born to an unwed mother by as many different

fathers. He had no meaningful relationship with his natural father, who refused to consent to his

adoption.1 Defendant unsuccessfully sought to leave his adoptive parents in order to stay with

his natural mother. A childhood mental health evaluation showed that defendant‟s childhood

home was the Coleman Funeral Home in Garysburg, North Carolina. Defendant‟s first adoptive

father left the area when defendant was around seven years old. Defendant‟s adoptive mother


          1
            The record shows that defendant was never legally adopted by Helen Coleman Washington or her second
husband. Mrs. Washington raised defendant from birth, however, and for brevity‟s sake, the couple are referred to
both at trial and on appeal as defendant‟s adoptive parents. Defendant‟s Sentencing Exh. 3.
                                               16

remarried shortly thereafter. Defendant lived in the funeral home with his adoptive mother, a

mortician, and her husband.     In the mental health evaluation, the husband is reported as

describing his occupations as a “root doctor,” inactive licensed minister, and businessman. He

described himself as often away from home tending to his many businesses and picking up

cadavers throughout the state of Virginia. Def. Sentencing Exh. 3, Social History pp. 1, 6-7;

Tpp. 3007-3010.


       The childhood psychological evaluations showed that at 9 years of age defendant began

having problems at home and at school. At 11 years of age, defendant needed mental health

treatment for behaviors that were “already becoming out of control.”      At that point, he was

diagnosed with an “unsocialized aggressive reaction to childhood” and borderline mental

retardation. Testing at a local community health center and in the Norfolk Public schools

showed full-scale I.Q. scores of 81-83. Dr. Strahl described these scores as in the “low average”

or “Dull Normal” range. Defendant also had difficulty with impulse control. Specifically, he

was described as incorrigible, with a history of aberrant and aggressive behaviors that he was

unable to control. His adoptive parents were told that defendant could not get treatment for his

mental health problems until he got into “further trouble or serious trouble.” In Dr. Strahl‟s

opinion, treatment for the problems that existed in childhood would have modified defendant‟s

behavior in a positive direction. Def. Sentencing Exh. 3, 5; Tpp. 3007-3010, 3021-24, 3027,

3074-75, 3102.


       Dr. Strahl concluded that on May 11, 1997, defendant was under the influence of a

mental or emotional disturbance. He testified that defendant‟s personality disorders could be

treated effectively with medication to address deviations in his serotonin level and with a

structured environment that was recommended but never obtained when defendant exhibited

aberrant behavior as a child. Tpp. 3020-21, 3040-41.
                                                 17

       On cross-examination, Dr. Strahl testified that defendant denied committing the charged

offenses and that defendant affirmed his innocence. Dr. Strahl also testified that he received

Defendant‟s Sentencing Exhibit 3, the mental health report from the community health center,

two or three days prior to testifying.   He testified that he agreed with aspects of a psychological

evaluation prepared by Claudia Coleman, Ph.D., in 1999. Specifically, Dr. Strahl testified that

he found no evidence of brain damage and that his finding was corroborated by prior reports,

including that of Dr. Coleman. Based on his own clinical experience, Dr. Strahl testified that he

would have placed defendant‟s I.Q. at 90, which was lower than that reported by Dr. Coleman

but higher than that reported in the childhood evaluations. Tpp. 3050, 3076, 3084-98.


       On redirect examination, defense counsel elicited details from the psychological report

prepared by the community health center when defendant was eleven years old. These details

included reported acts of stealing, gambling, breaking and entering, drinking alcohol and

smoking, threatening to hurt or kill others, sexual activity, making a bomb, taking and driving

cars, lying, and fighting. Dr. Strahl testified that the adoptive parents attempted to provide a

good home but were “utterly frustrated” by defendant‟s behavior and sought help in dealing with

him. Counsel also elicited statements from a later psychological report in which defendant was

quoted as saying, “I got something wrong with me. I don‟t remember things” and described

episodes of amnesia resulting from alcohol and drug intoxication. Defendant was quoted as

reporting such an episode in relation to the breaking and entering incident in which a pillow was

placed over the victim‟s face. Defendant was also quoted as describing himself as “incorrigible.”

On re-cross, Dr. Strahl testified that his statement that defendant‟s personality disorder and

substance abuse were significant factors in his behavior on May 11, 1997 was not an admission

of guilt. Def. Exh. 2-3; Tpp. 3100-3106, 3109-11, 3121-22.
                                               18

       At the close of the sentencing evidence, the jury was instructed on five aggravating

factors and eighteen mitigating circumstances.      The instructions on the aggravating factors

included two separate instructions each on the factors specified in N.C. Gen. Stat. §§ 15A-

2000(e)(3) and (e)(5).     These instructions were based respectively on defendant‟s prior

convictions for robbery and breaking and entering, and on the instant convictions for first degree

burglary and first degree sex offense. The final aggravating factor submitted was whether the

offense was especially heinous, atrocious, and cruel. G.S. 15A-2000(e)(9).     The jury found the

existence of all five aggravating factors. Rpp. 165-170, 190-191.


       The jury received a peremptory instruction on the statutory mitigating circumstance that

defendant was under the influence of a mental or emotional disturbance at the time of the

offense.   The instruction recited the personality disorders to which Dr. Strahl testified.

Defendant‟s request for peremptory instructions on the following nonstatutory mitigating

circumstances was denied: No. 2 (whether defendant was born to an unwed mother who had

multiple children by multiple men and who was living in poverty); No. 4 (whether defendant

never had any meaningful relationship with his natural father or his adoptive father); and No. 8

(whether defendant was identified early in life as having an anxiety disorder which interfered

with his intellectual efficiency). Rpp. 147-48; Tpp. 3162-64, 3165, 3171.


       The jury received peremptory instructions on the remaining nonstatutory mitigating

circumstances: No. 3 (whether defendant‟s mother gave him up at birth); No. 5 (whether

defendant‟s natural father would not consent to his adoption by the person who raised him from

birth); No. 6 (whether defendant was identified early in life as needing professional

psychological help); No. 7 (whether defendant was identified early in life as being unable to

control his aggressive behavior); No. 9 (whether defendant was identified as having behavioral

problems related to his emotions); No. 10 (whether defendant was identified at an early age as
                                                  19

having a Dull Normal range of intelligence and showed declining academic achievement); No.

11 (whether it was recommended at an early age that defendant be examined by an adolescent

specialist); Nos. 12-14 (whether defendant was diagnosed with narcissistic, schizoid, antisocial,

and anxiety disorders and alcohol and marijuana dependence); No. 15 (whether defendant‟s

personality structure resulted from a combination of genetic makeup and social/peer group

development); No. 16 (whether defendant‟s personality disorders could be effectively treated);

and No. 17 (whether defendant had problems with alcohol and drugs as early as the age of nine).

Rpp. 172-183.


       In the course of sentencing deliberations, one or more jurors found the existence of

mitigating circumstances Nos. 1, 3-4, and 6-18. Circumstance No. 18 was the “catch-all”

mitigator specified by G.S. 15A-2000(f)(9). Rpp. 191-194. The jury began its deliberations at

10:40 a.m. At 11:45 a.m., the jury requested and received a 15-minute break. Deliberations

resumed at 12:05 p.m. At 12:45 p.m., the trial court announced that it intended to interrupt the

deliberations in order to pass out lunch order forms to the jury. At 12:50 p.m., the jury was

brought into the courtroom. The bailiff stated that the jury had a question for the trial court, and

that the foreman wanted to address the court. After the foreman identified himself, the trial court

instructed him to submit the question in writing. The trial court then explained the lunch order

process to the jury. The trial court ordered the jury to stop deliberating, to return to the jury

room, and to fill out their lunch orders. The trial court instructed the jury that after the lunch

orders were collected “you can resume your deliberations.” At 12:52 p.m., the jury returned to

the jury room. Tpp. 3313-21.


       At this point, the bailiff informed the trial court that the foreman had already written out

the question. The question was, “Your Honor, the jury is eleven to one in favor of the death

penalty, therefore, we‟re at a standstill, please advise us what to do.” The trial court stated that it
                                                 20

was “not going to do anything at this point, just I‟ve got communication from them and I‟ve told

them to continue their deliberations and that‟s all I intend to do at this point.” At 12:55 p.m., the

trial court ordered a recess “until lunch arrives or we hear something from the jury.”      At 1:15

p.m., court reconvened in the jury‟s absence. The trial court asked Deputy Sheriff Hux to

reconstruct what occurred during the recess. Deputy Hux stated that defendant had resisted

turning over an ink pen, had head-butted an officer, and was “taken to the floor and handcuffed.”

The trial court ordered defendant handcuffed behind his back with the additional restraint of a

waist chain. The trial court denied defendant‟s personal request to be heard. Tpp. 3321-25.


       The trial court then stated that “Mr. Puckett, the bailiff, brought me a second written

communication from the jury moments ago while this event was apparently transpiring.” The

second note read, “Your Honor, the situation has been resolved. Foreperson.” The trial court

ordered a recess at 1:20 p.m. At 2:05 p.m., the trial court announced that the jury had reached a

sentence recommendation. At 2:10 p.m., the jury returned to the courtroom and reported a

unanimous recommendation of death. Tpp. 2325-36.


       Additional facts are provided as they are relevant to the argument below.
                                                21


                                          ARGUMENT

                                      PRETRIAL ISSUES

       I.      THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
               DENYING DEFENDANT’S MOTIONS FOR CHANGE OF VENUE
               AND FOR INDIVIDUAL JURY VOIR DIRE.

               Assignment of Error No. 5, Rpp. 217-18.
               Assignment of Error No. 8, Rp. 218.

       In the autumn of 1997, defendant filed a motion for change of venue under N.C. Gen.

Stat. § 15A-957. He alleged that he could not receive a fair trial by an impartial jury as

guaranteed by the Sixth and Fourteenth Amendments. He cited prejudicial pretrial publicity

aired through the local media. These stories gave information about the offenses charged, about

the victim, who was a “well-known citizen and property owner,” and about defendant and his

background. Defendant also alleged that the nature of the crime evoked “great passion and

prejudice” in the local community. Rp. 24.

       On April 19, 1999, argument was heard on the motion. Defendant supplemented the

motion with seven exhibits. Each exhibit was an article from the Roanoke Rapids Daily Herald.

Defense counsel described the Herald as the only newspaper (other than a free tabloid-type

publication) providing coverage for the Halifax County area. The trial court reviewed the

articles and noted that “the reports with the large headlines and the greatest coverage deals with a

[sic] horror of the crime and the circumstances of the crime[.]” April 19, 1999 Motions Hearing

Tpp. 38-39.


       Defense counsel also pointed the court to a number of specific passages in the articles.

April 19, 1999 Motions Hearing Tpp. 39-45. In Defense Exhibit 2, the local Chief of Police

described the victim as “well-known and a pillar of the community, a very sweet lady, very

wonderful.” Exhibit 3 related facts about a shooting in the same neighborhood and its effect on
                                                 22

local residents.   In this article, a friend of Mrs. Sechler‟s was quoted as saying that the

perpetrator “needs to be electrocuted.” Exhibit 6 described defendant‟s arrest, and identified

evidence as coming from the F.B.I. and from a ten-year-old girl.


       Exhibit 7 contained a photograph of defendant and was entitled, “Murder Suspect Spent

Years in State Prison.”    This article detailed defendant‟s history of convictions and sentences

from 1982 through 1996. The article also quoted the public relations director for the state

Department of Corrections regarding defendant‟s classification as a “safekeeper.”            The

classification meant that defendant was considered “dangerous to other prisoners” or that other

prisoners may have been a danger to him. The article recited numerous rule violations attributed

to defendant, which the Corrections spokeswoman described as “high.” The article also states

that defendant was charged with indecent liberties for an incident involving a 10-year-old girl.

Chief Clark was quoted as saying that this charge “helped identify Rogers as a suspect.” Exhibit

8, a separate article, repeated the information about the indecent liberties charge.


       Defense counsel argued that these statements about the offense, the investigation, the

characters of the victim and defendant, and the extraneous charges created an irremediable taint

in the community from which the jury was to be drawn. The presiding judge denied the motion

on the basis that the delay between publication of the newspaper articles and trial made it

unlikely that prospective jurors would recall the details of the offenses or be unable to remove

any preconceptions formed as a result of the pretrial publicity. April 19, 1999 Motions Hearing

Tpp. 39-47.


       On March 20, 2000, the defense renewed the motion for change of venue. The trial court

reviewed a videotaped copy of local television news coverage. Defense counsel alleged that the

information was broadcast repeatedly over the weekend before trial began on the only local

television station. Defense counsel argued that change of venue was warranted by “derogatory
                                               23

remarks” about defendant in the videotape, comments about defendant‟s prior criminal record,

and information about the victim. As an alternative, counsel requested a pre-screening and

individual voir dire of prospective jurors who had been exposed to pretrial publicity to ensure

that they “didn‟t taint the rest of the pool.” The state opposed the motion for change of venue

but conceded that defendant‟s concerns could be dealt with through jury selection. Tpp. 84-85,

100-106.


       Defendant had also filed a separate motion for individual jury voir dire. The motion

specifically cited the need to inquire about biases resulting from pretrial exposure to

“emotionally charged and prejudicial publicity.” The motion also urged that individual voir dire

was necessary to obtain full candor and honesty from prospective jurors, without which

peremptory challenges could not be exercised intelligently. Again, the state did not oppose the

motion for individual voir dire. Nevertheless, each of defendant‟s motions was denied. Rp. 34;

Tpp. 106, 114.


       The denial of defendant‟s motions was reversible error and requires new trial. The Sixth

Amendment and federal due process rights to trial by an impartial fact-finder are “fundamental to

the American scheme of justice” and apply to state court proceedings. Duncan v. Louisiana, 391

U.S. 145, 149, 20 L.Ed.2d 491, 496 (1968); Sheppard v. Maxwell, 384 U.S. 333, 16 L.Ed.2d 600

(1966); Tumey v. Ohio, 273 U.S. 510, 71 L.Ed.2d 749 (1927); U.S. Const. amends. V, VI, XIV.

The same rights are protected under the North Carolina Constitution. State v. Thomas, 344 N.C.

639, 645, 477 S.E.2d 450, 452 (1996); State v. Jerrett, 309 N.C. 239, 258, 307 S.E.2d 339, 349

(1983); N.C. Const. art. I, §§ 19, 23, 24. In a capital case, these protections are heightened by

the specific concern that sentencing deliberations must not be tainted by bias in favor of death.

U.S. Const. VIII, XIV; Witherspoon v. Illinois, 391 U.S. 510, 520, 20 L.Ed.2d 776 (1968); N.C.

Const. art. I, § 27. Specifically, jurors whose preconceptions about the case or about the death
                                                24

penalty render them unable to give effect to mitigating evidence in sentencing deliberations are

disqualified from serving on a capital jury. Morgan v. Illinois, 504 U.S. 719, 729, 119 L.Ed.2d

492, 503 (1992).


       In Jerrett, this Court ordered a new capital trial after finding the totality of the

circumstances created such a probability of prejudice as to constitute an inherent denial of due

process. 309 N.C. at 256, 307 S.E.2d at 348. This Court found it “extremely significant” that

the crime had occurred “in a small, rural and closely-knit county where the entire county was, in

effect, a neighborhood.” Id. The same is true in the instant case. At the time of trial, the federal

census recorded Halifax County as a thinly-populated, rural area with 57,370 residents and no

major metropolitan area. The population density is less than half the average of the rest of North

Carolina   (79.1 persons/square mile versus 165.2).        United States Bureau of the Census,

<http://quickfacts. census.gov/qfd/states/37/37083.html> (App. 3); Mallard v. Eastern Carolina

Regional Housing Authority, 221 N.C. 334, 20 S.E.2d 281 (1942) (judicial notice properly taken

of census information).


       The record also shows that the case had a very high profile in the local community. It

drew the attention and active intervention of Congresswoman Sue Ellen Myrick. As a result, the

F.B.I. was called into the investigation and forensic testing was conducted by that federal agency

instead of by its state counterpart. Tpp. 2220-21. Moreover, as in Jerrett, “the probability of

irreversible prejudice … is further illustrated by the actual jury voir dire” showing “that a great

number of the potential jurors had some prior knowledge of the case.”        309 N.C. at 257, 307

S.E.2d at 349. A total of 69 prospective jurors were called for questioning in defendant‟s case.

Forty-one of these jurors, or nearly 60% of the venire, knew of the case through personal

acquaintance with the victim, with defendant, or with his family; through familiarity with the

crime scene; through word-of-mouth discussion in the community; or through media exposure.

Nine of fifteen seated jurors had such knowledge. The reported media exposure included
                                                       25

television broadcasts and newspaper coverage. The latter coverage included both news articles

and a letter to the editor regarding the case.


        Many prospective jurors were also acquainted with the state‟s witnesses. Some reported

close friendships and even family relationships with these witnesses. Tpp. 137-38, 149-50, 154,

159, 164, 187-88 (Juror No. 11), 306, 428, 432, 441, 447, 452 (Juror No. 12), 482-83, 503, 548

(Juror No. 9), 572, 643-44, 648, 651, 661, 688, 707 (Juror No. 2), 717, 756, 762-64, 776-77, 809-

810 (Juror No. 4), 829, 853, 871, 920, 924, 957-58, 995, 1032-33 (Juror No. 6), 1157-58, 1171,

1199, 1236 (Alternate No. 1)2, 1292 (Alternate No. 2), 1352, 1382 (Alternate No. 3).


        The trial court‟s initial questioning of prospective jurors also revealed that pretrial

exposure to information about the case led some to form or express opinions about the

appropriate outcome before hearing any evidence. Generally, the trial court asked only whether

pretrial exposure led prospective jurors to form opinions on defendant‟s guilt or innocence. The

trial court did not inquire as a matter of course whether pretrial exposure biased jurors as to

sentencing. Nevertheless, prospective jurors voluntarily admitted to such bias. “This Court has

repeatedly emphasized” that such evidence is the “best and most reliable” proof that defendant

could not receive a fair trial. State v. Wallace, 351 N.C. 481, 511, 528 S.E.2d 326, 345, cert.

denied, 531 U.S. 1018, 148 L.Ed.2d 498 (2000) (internal citations and quotation marks omitted).


        Moreover, one juror who expressed bias based on pre-trial knowledge of the case

deliberated in both the guilt and sentencing phases after defendant exhausted his peremptory

strikes. In addition, as in Jerrett, the denial of defendant‟s motions for individual voir dire led to

jurors‟ being “seated in the courtroom where they heard” about other jurors‟ knowledge of,

connections with, and opinions about the case. And, as in Jerrett, defense counsel‟s “inquiry


        2
         Over defendant‟s objection, Alternate No. 1 replaced Juror No. 6 before guilt-phase deliberations began.
Tpp. 1563, 1567.
                                                 26

into the extent of [juror bias] was limited due to the presence in the courtroom” of other jurors.

309 N.C. at 258, 307 S.E.2d at 349. As in Jerrett, the foregoing factors created an impermissible

likelihood of prejudice, resulting in the violation of defendant‟s constitutional rights and

necessitating a new trial or, in the alternative, a new sentencing hearing.


       Raymond White was one of the first jurors to admit that he was affected by pretrial

exposure to information about the case. Mr. White stated in front of other prospective jurors that

he already believed that death was the appropriate punishment for the offense. Tpp. 166, 373.

The trial court also asked James Humphries whether media exposure had led him to an opinion

on defendant‟s guilt or innocence. Mr. Humphries responded, “Well, you tend to …” but the

trial court did not allow him to complete his answer. Tp. 433. Later, Mr. Humphries admitted in

front of other jurors that he, too, already had concluded that death was the appropriate

punishment for the case. Tp. 517.       Judith Drewery was a registered nurse who was present

when Mrs. Sechler received medical care and admitted to being biased based on “that and other

things” about the case. Tp. 688. Barbara Whitehead also stated that she could not be impartial.

Tp. 1127.


       Gilbert Portela described his close friendships and family relationships with the state‟s

key witnesses, including Weldon Police Chief Karl Clark and Captain C.E. Ward. Mr. Portela

was asked whether he would be biased with respect to these witnesses‟ credibility. He answered,

“Though I have an awful lot of integrity I feel I have that quality.” The trial court asked Mr.

Portela whether, based on his close association with these witnesses, he had his “mind made up

that anything they say is going to be gospel?” Mr. Portela said the question was “hard to

answer” and named another state‟s witness with whom he was close. The trial court interrupted

him and asked again whether he could scrutinize these witnesses‟ testimony.          Mr. Portela

responded that he would “attempt” to do so. When asked the same question yet again, he said
                                                27

that he could do so. Mr. Portela also admitted that he would have difficulty focusing on the case

because of competing out-of-court responsibilities.        The trial court interrupted defense

questioning on this point and led Mr. Portela away from disqualification. The trial court told the

juror that he had a duty to give the case his “undivided strict attention” and asked, “You‟re going

to be able to do that will you not, sir?” Mr. Portela answered yes and defendant exercised one of

his limited peremptory strikes against this prospective juror. Tpp. 876-81, 900-901, 911.


       The defense exhausted its fifteen peremptory strikes before the first alternate was

selected. Tp. 1220; G.S. 15A-1217(a),(c). Thereafter, Tracy Smith was called into the first

alternate‟s seat for questioning. During preliminary questioning by the trial court, Ms. Smith

stated that she had heard of the case via the news media and word of mouth when the offenses

occurred.   Subsequently, Ms. Smith indicated that, based on this pretrial information, she had

already decided the appropriate sentence for the case. Instead of asking Ms. Smith directly

whether she had such an opinion, the trial court reverted to the general question whether she

could set aside the information she had obtained before trial. When Ms. Smith began again to

indicate that she had prejudged the outcome “as far as punishment,” the trial court interrupted her

and restated the “set-aside” question.


       The colloquy occurred as follows:


               THE COURT: Okay. Based on what you heard discussed and what
               you read in the paper have you formed or expressed an opinion
               about the guilt or innocence of defendant?

               MS. SMITH: As far as guilt or innocence? No.

               THE COURT: Okay. Well that kind of begs a question and I don‟t
               know whether that means something else. Have you – well, first let
               me ask you this, if you were selected as a juror in this case would
               you put aside whatever it is you‟ve read in the paper, heard
               discussed and decide this case only upon what evidence unfolds
               here in the courtroom?
                                                 28

                MS. SMITH: Yes.

                THE COURT: And would you do that?

                MS. SMITH: Yes.

                THE COURT: As to any aspect of this case, if we reach that point
                …

                MS. SMITH: (Interjected) Yes.

                THE COURT: … as to any aspect of this case, should we reach the
                question of punishment would you be able to do that?

                MS. SMITH: As far as punishment I have …

                THE COURT: (Interjected) What I‟m asking you again is, ma‟am,
                and listen to my question. Would you be able to set aside whatever
                you read in the paper, what even you heard discussed, decide the
                issue of punishment if we reach that point upon the evidence as
                unfolds here in the courtroom? Could you do that?

                MS. SMITH: Yes.


Tpp. 1236-38.


        Ms. Smith then told the prosecutor that she favored the death penalty over life

imprisonment without parole. Asked whether this bias “would affect her ability to be fair and

impartial in these cases,” she said, “I believe it would, especially with the work that I‟ve been in,

yes.”     The record shows that Ms. Smith had worked in geriatrics.            Asked whether she

considered that her bias in favor of death rendered her unfair as a general matter, she answered

“No” and stated, “I believe I am” fair. Tpp. 1241-42, 1246.


        The prosecutor also asked Ms. Smith if anything besides her bias in favor of death would

make her “an unfair juror, an improper juror in these cases.”       She stated that “the age of the

victim” made her “partial.” On further questioning, she admitted that this factor would be “a

substantial thing that would stick with me as far as sentencing … as far as sentencing, yes, it

would.” The trial court interrupted the prosecutor‟s questioning to re-instruct Ms. Smith on the
                                                 29

law governing capital deliberations. Thereafter, she stated that she would follow the law in

sentencing deliberations and denied that her personal views would impair her ability to do so.

Like Mr. Portela, Ms. Smith admitted to defense counsel that she was distracted even during jury

voir dire by out-of-court responsibilities that would continue through the trial. The trial court

again interrupted defense questioning to tell Ms. Smith that she had a duty to give her undivided

attention to the case. Ms. Smith stated that she would. Having exhausted its limited stock of

peremptory strikes, the defense accepted Ms. Smith as first alternate. Tpp. 1269-85, 1288.


       Over defendant‟s objection, Ms. Smith replaced seated Juror No. 6 on the first day of

trial. Tp. 1563, 1567. She participated in deliberations during both phases of these capital

proceedings. She voted in favor of guilt. In the sentencing phase, consistent with the biases that

she expressed during jury voir dire and attributed to pretrial knowledge about the case, she also

voted in favor of death. Tpp. 2926, 3331.


       Defendant recognizes that in Wallace this Court found no specific prejudice from the

denial of a motion for change of venue where a seated juror openly admitted bias against the

defendant based on pretrial information as did Ms. Smith in the instant case. This Court based

its decision on the presumption that the juror told the truth when he subsequently answered “set-

aside” and “follow-the-law” questions in such a way as to avoid a for-cause challenge by the

defense. 351 N.C. at 512, 528 S.E.2d at 345-46. This Court justified this presumption of juror

veracity on the basis that “our courts could not function” without it. Id.


       Recent social science research has proved that the presumption of juror veracity relied

upon in Wallace is false and should be abandoned. This false presumption is not a prerequisite

without which “our courts could not function.” Id. To the contrary, it is a “legal fiction” that

infects capital proceedings with “an unmistakable pro-death tilt.” The resulting violation of

fundamental constitutional rights to impartial juries, fair trials, and reliable sentencing
                                                30

proceedings impinges not only the interests of individual criminal defendants, but also broader

social interests in maintaining a trustworthy criminal justice system. William J. Bowers, Marla

Sandys, & Benjamin D. Steiner, “Foreclosed Impartiality in Capital Sentencing:             Jurors‟

Predispositions, Guilt-trial Experience, and Premature Decision-Making,” 83 Cornell L. Rev.

1476, 1532, 1547 (1998).


       These recent empirical studies demonstrate that death-prone jurors like Ms. Smith retain

their biases and employ them prior to and during deliberations despite their promises on voir dire

to set them aside and follow the law. Jurors who served on capital juries are disproportionally

inclined to take early pro-death stands and disproportionally likely to be “absolutely convinced”

of their position even before guilt-phase deliberations occurred. Pro-death jurors use guilt-phase

deliberations to argue in favor of guilt and death. Specifically, pro-death jurors mistakenly urge

that death is required by the facts or the law. They cite the need for retribution and deterrence.

They argue that jurors leaning toward acquittal would not be “personally responsible for the

defendant‟s death, that the judge is the one who imposes the death penalty, and that the

defendant is not apt to be executed.” Id. at 1523-25, 1529-33.


       This research shows that current capital voir dire procedures


               are obviously failing to both detect and reject jurors whose feelings
               and beliefs about the death penalty prompt them to take and to
               remain committed to an early pro-death stand. … Clearly, the
               range or kinds of questions now employed or even permitted, the
               discretion judges exercise in culling out biased jurors, and
               attorneys‟ skills in conducting voir dire questioning are not
               sufficient to purge pro-death jurors and pro-death prospective
               jurors who will not abide by sentencing standards.

More specifically, the “set-aside” and “follow-the-law” questions typically used to rehabilitate

death-prone jurors -- and used by the trial court in this case to rehabilitate Ms. Smith -- “cannot
                                                 31

be trusted” to detect and disqualify jurors “manifestly predisposed to death as punishment” and

inclined “to become premature decision-making members of capital juries.” Id. at 1537-42.


        Additional studies cast doubt on Ms. Smith‟s ability to set aside her specific bias in favor

of death based on the non-statutory aggravating factor of the victim‟s age. Nearly half of capital

jurors in North Carolina wrongly believed that their capital sentencing deliberations were not

confined to aggravating factors defined by statute or by the trial court. James Luginbuhl and

Julia Howe, “Discretion in Capital Sentencing Instructions: Guided or Misguided?,” 70 Ind. L.

J. 1161, 1165-67 (1995). The study by Professors Bowers, Sandys, and Steiner also showed that

pro-death jurors used guilt-phase deliberations to argue in favor of death based on non-statutory

factors, including evidence of premeditation and deliberation or malice. 83 Cornell L. Rev. at

1523-25.


        These empirical findings show a significant likelihood that the denial of defendant‟s

motions for change of venue and individual voir dire violated his rights to an impartial jury and

to fair and reliable capital trial and sentencing proceedings. This Court cannot “ignore this

empirical reality in favor of the current legal fiction” that pro-death jurors like Ms. Smith answer

truthfully when asked to set aside their biases and follow the law when they deliberate and render

decisions in capital cases. 83 Cornell L. Rev. at 1546-47. The infection of a jury with bias

constitutes structural error, and requires new trial or, in the alternative, a new sentencing hearing.

See Gray v. Mississippi,481 U.S. 648, 95 L.Ed.2d 622 (1987) (erroneous removal of venire

member for cause held structural error); Tumey, supra (structural implications of bias in fact-

finder constitute reversible error per se).


        The basis for ordering new trial lies in the nature of the structural error committed. The

error
                                               32

               occur[ed] prior to the presentation of any evidence to the jury …,
               affect[ed] the framework within which the trial proceeds … [and,
               on appellate review,] it is purely speculative to attempt to assess
               the impact of the error in the context of the evidence presented at
               trial to determine whether it was harmless beyond a reasonable
               doubt.

State v. LaMere, 298 Mont. 358, 378, 2 P.3d 204 (2000) (ordering new trial for structural error in

jury selection; citing Arizona v. Fulminante, 499 U.S. 279, 113 L.Ed.2d 302 (1991)); State v.

Blem, 610 N.W.2d 803 (S.D. 2000) (new trial ordered for structural error in jury selection).

Defendant must receive a new trial.


       II.     THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
               DENYING DEFENDANT’S MOTION TO SUPPRESS AN
               IMPERMISSIBLY     SUGGESTIVE    PHOTOGRAPHIC
               IDENTIFICATION.
               Assignment of Error No. 19, Rp. 222.

       Before trial, defendant moved to suppress Mrs. Johnson‟s identification of him on the

basis that the photographic lineup prepared by Weldon police violated his right to due process of

law and his Sixth Amendment right to counsel. Rpp. 64-66. Defendant filed a second motion to

suppress several months later. Rpp. 69-72. The trial court denied the motions after a hearing.

September 13, 1999 Motions Hearing Tp. 122; Rpp. 73-76.            The trial court‟s ruling was

reversible error.

       Defendant‟s due process claim presents two issues for resolution. The first issue is

whether the circumstances of the identification of defendant by Mrs. Johnson through the photo

lineup were “unnecessarily suggestive.”     The second issue is whether that unconstitutional

suggestiveness created a substantial risk of mistaken identity. State v. Yancey, 291 N.C. 656,

661, 231 S.E.2d 637, 641 (1977) (“even if a pretrial confrontation is suggestive” reviewing court

must examine whether evidence shows “the identification to be reliable.”).            In State v.

Pinchback, a unanimous panel of the North Carolina Court of Appeals considered a case in

which the state had conceded that pretrial identification procedures were impermissibly
                                                  33

suggestive. The panel carefully examined the fact-findings upon which the trial court had based

its ruling that those suggestive procedures had not created a “substantial likelihood of irreparable

misidentification.” 140 N.C. App. 512, 518, 537 S.E.2d 222, 226 (2000). The panel found that

the evidence contradicted key fact-findings. The panel also found substantial likelihood of

mistaken identity, and ordered a new trial. 140 N.C. App. at 519-521, 537 S.E.2d at 226-227.


          The same result is required in defendant‟s case. The record does not support and, in

some instances, contradicts the trial court‟s findings. The record establishes both the

impermissible, unnecessarily suggestive nature of the photo lineup used here and the resulting

substantial risk of mistaken identity in this case.


                 A.     The trial court erred in finding that identification
                        procedures in this case were not impermissibly suggestive.

          Identification procedures must avoid impermissibly focusing attention on a single

suspect. U.S. Const. amends. V, XIV; Stovall v. Denno, 388 U.S. 293, 302, 18 L.Ed.2d 1199,

1206 (1967); Manson v. Braithwaite, 432 U.S. 98, 110, 53 L.Ed.2d 140, 152 (1977); N.C. Const.

art. I, §§ 19, 20, 23; State v. Knight, 282 N.C. 220, 226-27, 192 S.E.2d 283, 287 (1972) (holding

circumstances of photo identification impermissibly suggestive); Yancey, 291 N.C. at 661, 231

S.E.2d at 641 (same with respect to showup); State v. Smith, 278 N.C. 476, 180 S.E.2d 7 (1971)

(same).


          In Smith, the witness had described the perpetrator a “young colored male wearing a

white T-shirt and a pair of dark gray pants.” 278 N.C. at 476-77, 180 S.E.2d at 8. The witness

was then allowed to see the defendant when he was one of “three colored males in the same cell”

but the only one wearing a white T-shirt and dark gray pants.              This Court found the

circumstances of the identification impermissibly suggestive. 278 N.C. at 477, 481-483, 180

S.E.2d at 10.
                                                34

       The photo lineup presented to Mrs. Johnson was equally impermissible. The lineup

unconstitutionally focused attention on defendant‟s picture in a number of ways. First, the

background of his photograph is different from all the rest in the lineup. Each of the other

photographs has a white background with horizontal dark lines running across it. Defendant‟s is

the lone photograph that differs from the rest.      In addition, defendant is one of only two

individuals pictured with dreadlocks. The presence of four-inch long dreadlocks was a key

factor in Mrs. Johnson‟s description of the perpetrator. The absence of visible dreadlocks in all

but two of the six pictures impermissibly focused attention upon the defendant. State‟s Exh. 47;

September 13, 1999 Motions Hearing Tpp. 73, 86.


       Finally, the clothing of the six individuals depicted differs in a highly significant way.

All but defendant are pictured in orange jail jumpsuits or in earth-tone clothing. In contrast,

defendant is depicted in a T-shirt of a deep, almost cherry-red color.       When shown to Mrs.

Johnson, the photo lineup was bound on the bottom and on both sides with a band of tape of a

similar deep red color. This distinctive red binding frames the photo lineup just as the similarly-

colored T-shirt frames the defendant‟s face, and draws the viewer‟s eye to his photograph.

State‟s Exh. 47; Tp. 2011. The significant differences between defendant‟s photograph and the

other five in the lineup show the clear error in the trial court‟s findings that the photographs had

similar “background” and “conditions” and that “the persons depicted therein are of the same

type and contain similarities and consistencies of appearance”. Rp. 74, ¶ 4; Rp. 75, ¶ 11; Smith,

supra; Pinchback, supra.


       In addition, the record establishes that at the time Mrs. Johnson identified defendant in

the photo array, she knew that Chief Clark wanted her to look at pictures of a suspect, based on

her prior description of the perpetrator on the porch. September 13, 1999 Motions Hearing Tpp.
                                               35

84. 101. This Court has recognized that such a circumstance heightens the impermissible

suggestiveness of a photographic identification. See Knight, supra.


       Moreover, no exigent circumstances prevented officers from presenting defendant to Mrs.

Johnson in a corporeal lineup or in a properly constructed, unsuggestive photo lineup.        In

Stovall v. Denno, the United States Supreme Court considered whether due process was violated

by the hospital bedside show-up of an African-American defendant handcuffed to and

surrounded by white officers and prosecutors. The victim was asked, “Is this the man?” and was

allowed to hear the defendant speak a few words for voice comparison purposes. 388 U.S. at

295, 18 L.Ed.2d at 1202. The Court held that these circumstances, while suggestive, were

necessary and therefore did not violate due process. The Court reasoned that the victim was the

only person who could exonerate the defendant through the identification process, and therefore

her uncertain survival made the immediacy and circumstances of the showup “imperative.” 388

U.S. at 302, 18 L.Ed.2d at 1206. Similarly, in Simmons v.United States, the Court allowed the

use of multiple, group photographs as a pretrial identification in part because “the perpetrators

were still at large” and unavailable for a photographic or corporeal line-up. 390 U.S. 377, 384,

19 L.Ed.2d 1247, 1253 (1968).


       No such exigent circumstances were present in defendant‟s case. The record shows that

defendant was at the police station throughout the afternoon and into the night of May 13, 1997,

while photographs were being taken. There was ample time to present Mrs. Johnson either with

a corporeal line-up including defendant or a properly constructed photographic lineup that did

not impermissibly focus attention upon him. Under such circumstances, the state‟s use of the

suggestive photo array weighs against the state. State v. Henderson, 285 N.C. 1, 11-12, 203

S.E.2d 10, 18-19 (1974), vacated on other grounds, Henderson v. North Carolina, 428 U.S. 902,

49 L.Ed.2d 1205 (1976). In Henderson, this Court weighed a showup against the state when, as
                                                36

in Defendant‟s case, “the defendant was in custody under circumstances which would have

easily permitted the formation of a lineup.” Id. The totality of the circumstances contradict the

trial court‟s findings that the circumstances of Mrs. Johnson‟s identification of defendant were

not unconstitutionally suggestive. Those findings should be reversed. Rp. 74, ¶ 4; Rp. 75, ¶¶ 11,

1-3; Rp. 76, ¶ 5; Pinchback, supra.


                  B.   The impermissibly suggestive identification of defendant
                       by Mrs. Johnson created a substantial risk of mistaken
                       identification.

        Empirical research has firmly established that “eyewitness identifications are notoriously

unreliable.” Benjamin E. Rosenberg, “Rethinking the Right to Due Process in Connection with

Pretrial Identification Procedures: An Analysis and a Proposal,” 79 Ky. L.J. 259, 260 (1991). It

is particularly well-established that witness certainty is not a valid indicator of reliable

identification.    E.g., Gary L. Wells and Donna M. Murray, “Eyewitness Confidence,” in

Eyewitness Testimony 155, 168-69 (Gary L. Wells and Elizabeth F. Loftus, eds., 1984); Kenneth

A. Deffenbacher, “Eyewitness Accuracy and Confidence: Can We Infer Anything About Their

Relationship?,” 4 Law & Hum. Behav. 243, 357-58 (1980).


        It is equally well-established that risk of error is further heightened in cases of cross-

racial identification. E.g., Sheri Lynn Johnson, “Cross-Racial Identification Errors in Criminal

Cases,” 69 Cornell L. Rev. 934 (1984); John C. Brigham and Paul Barkowitz, “Do „They All

Look Alike‟: The Effect of Race, Sex, Experience and Attitudes on the Ability to Recognize

Faces,” 8 J. Applied Soc. Psychology 306 (1978). The record indicates that these heightened

risks of error were present in defendant‟s case. Tpp. 108-119. On cross-examination at the

suppression hearing, Mrs. Johnson was asked how confident she was upon first viewing the

photo lineup that defendant was the person seen on Mrs. Sechler‟s porch two and a half years

earlier. Mrs. Johnson replied, “At first I was – I said „I think so.‟” September 13, 1999 Motions
                                               37

Hearing Tp. 99. She explained her uncertainty by the fact that defendant‟s skin in the photo was

darker than that of the perpetrator. Id. Similarly, when facing defendant in the courtroom, Mrs.

Johnson exhibited uncertainty about his identity. The trial court, apparently recognizing this,

asked if she needed to have defendant‟s cap removed in order to identify him. She indicated that

she was unable to be certain in her identification without seeing defendant‟s dreadlocks. Id. Tp.

58.


       Years before researchers established the empirical risks of erroneous identifications in

general and the heightened risk of error in cross-racial identifications, the U.S. Supreme Court

cautioned that “improper employment of photographs by police may sometimes cause witnesses

to err in identifying criminals.” Simmons v. United States, 390 U.S. at 377, 19 L.Ed.2d at 1253.

The Simmons Court also cautioned that, “Regardless of how the initial misidentification comes

about, the witness thereafter is apt to retain in his memory the image of the photograph rather

than of the person actually seen, reducing the trustworthiness of subsequent … courtroom

identification.” 390 U.S. at 383, 19 L.Ed.2d at 1253.       In defendant‟s case, that inevitable

psychological stake-out and the ensuing likelihood of erroneous identification was enhanced by

the lapse of two and a half years between the pretrial and in-court identifications. During that

time, Mrs. Johnson testified, she heard neighborhood discussion that defendant was being

questioned by police. She also saw local news coverage of defendant‟s arrest,          including

photographs of defendant. September 13, 1999 Motions Hearing Tpp. 88-90.


       When Mrs. Johnson was finally allowed to see defendant in person, he was with his

attorneys in the courtroom. At that time, he was wearing an orange prison jumpsuit and slippers.

Id. Tpp. 58, 96. Mrs. Johnson also testified that she was more certain that defendant was the

perpetrator after seeing him in the courtroom two and a half years after reviewing the photo

lineup than she had been in May of 1997. Tpp. 99-100. These factors, in addition to the
                                                 38

uncertainties inherent in cross-racial identifications, increase the risk of erroneous identification

in this case. See Foster v. California, 394 U.S. 440, 442, 22 L.Ed.2d 402, 407 (1969) (pretrial

procedures made in-court identification “inevitable,” new trial ordered); see also Evan J.

Mandery, “Due Process Considerations of In-Court Identifications,” 60 Albany L. Rev. 389

(1996) (“in-court identifications are inherently suggestive”). Also compounding the risk of

erroneous identification in this case are statements contained in the record implicating another

African-American man who had shaved off his dreadlocks after the killing. These statements

indicate that the “word is on the strip that Lionel Rogers is not the killer, this guy keeps bragging

about the killing” and that the “Police had the right guy & let him go.” Rpp. 105-106.


       Another ingredient for erroneous identification listed by the Simmons Court is a witness‟

limited ability to view the perpetrator. 390 U.S. at 383, 19 L.Ed.2d at 1253. At the suppression

hearing, Mrs. Johnson testified on cross-examination that she was 83 years old. September 13,

1999 Motions Hearing Tp. 65. She also testified that she was uncertain how long she saw the

perpetrator standing on Mrs. Sechler‟s porch on the night of May 11, 1997. She admitted that

the porch walls partially blocked her view at first, allowing her to see the perpetrator only from

the waist up. Id. Tpp. 73-74, 76, 87. Mrs. Johnson also testified that on the night of May 11,

Officer Harris wrote down a description that she gave of the perpetrator. Defense counsel asked

for discovery of that prior statement. The trial court denied the request. Id. Tp. 79.


       When that information was finally provided at trial, it showed that Mrs. Johnson‟s

descriptions were inconsistent. Based on her description given on May 11, 1997, officers looked

for a perpetrator in dark pants. Mrs. Johnson testified, however, that the perpetrator wore tan or

brown pants. Tpp. 1522, 1703, 2402. Mrs. Johnson‟s description of the blue-green T-shirt and

tan pants also conflicted with the testimony of Jack Newsome, who testified that he saw

defendant that night wearing jeans and a T-shirt that “looked like it was white.” Tp. 2471.
                                                39

Convenience store clerk Beatrice Moore also admitted telling the defense investigator that she

did not know what color the shirt was. Tpp. 1890-91, 1893.        These uncertain and conflicting

descriptions further increase the risk that Mrs. Johnson erred in identifying defendant as the

perpetrator of the offenses against Mrs. Sechler.


       The record also shows that Mrs. Johnson, in the prosecutor‟s own words, “had a vested

interest” in identifying defendant. September 13, 1999 Motions Hearing Tpp. 122. As the

prosecutor put it, “one of her missions in life was to look after Mrs. Hazel Sechler.” Id. The

witness testified that she had been a friend, neighbor, and helpmate to Mrs. Sechler for over fifty

years. Tp. 52.      Mrs. Johnson‟s “vested interest” in identifying defendant, along with the

additional cumulative circumstances in this case, heightened the already substantial risk of

mistaken identification and rendered the witness‟ in-court and out-of-court identifications of

defendant in violation of his right to due process of law. The trial court erred in ruling to the

contrary. Rp. 74, ¶ 4; Rp. 75, ¶¶ 11, 1-3; Rp. 76, ¶ 5; Smith, supra; Pinchback, supra.


               C.     The trial court erred in finding that Mrs. Johnson’s
                      identification of defendant was independent of the
                      impermissibly suggestive photo lineup.

       It is well established that an “in-court identification of a witness who took part in an

illegal pretrial confrontation must be excluded unless it is first determined by the trial judge on

clear and convincing evidence that the in-court identification is of independent origin and thus

not tainted by the illegal pretrial identification procedure.” Yancey, 291 N.C. at 660, 231 S.E.2d

at 640. Thus, this Court has a duty to examine the record for clear and convincing, competent

evidence to support the factual finding that the in-court identification was independent of the

prior, tainted identification. Rpp. 74-76; Knight, 282 N.C. at 226-27, 192 S.E.2d at 287-88

(examining record); Yancey, 291 N.C. at 660, 231 S.E.2d at 640 (same).
                                                40

        The record contains no evidence whatsoever, much less any clear and convincing

evidence, to support the trial court‟s factual findings of independent identification in this case.

The question whether Mrs. Johnson‟s in-court identification of defendant was independent of the

unconstitutional photo lineup was first addressed in an order written by the prosecution.

September 13, 1999 Motions Hearing Tp. 122; Rp. 74, ¶ 9; Rp. 75, ¶ 1-2, 4; Rp. 76, ¶ 5. The

issue of independent identification never arose at the suppression hearing. The prosecution never

raised the issue with Mrs. Johnson.    Nor did the subject arise during argument on defendant‟s

motion to suppress the identification. Instead, the prosecutor focused on the question whether

defendant‟s rights were violated by the uncounseled custodial taking of photographs on May 13,

1997.     September 13, 1999 Motions Hearing Tpp. 120-22. Consequently, the trial court‟s

findings of independent identification are completely unsupported by the record. For the reasons

argued above in sections A-B of this Issue and incorporated herein by reference, Mrs. Johnson‟s

in-court identification cannot be divorced from the impermissible suggestiveness and risk of

misidentification created by the unconstitutional photo lineup presented to her two and a half

years earlier.


        The trial court‟s findings of independent identification constitute reversible error.

Pinchback, 140 N.C. App. at 519-521, 537 S.E.2d at 226-227.             Because Mrs. Johnson‟s

identifications were central to the state‟s case, the state cannot prove the error harmless and

defendant must receive a new trial. G.S. 15A-1443(b); Chapman v. California, 386 U.S. 18, 17

L.Ed.2d 705 (1967).
                                                        41


        III.     THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
                 EXCUSING JURORS FOR CAUSE BASED ON INADEQUATE
                 VOIR DIRE.

                 Assignment of Error No. 13, Rp. 220.
                 Assignment of Error No. 14, Rp. 220.

        The trial court committed constitutional error by excusing prospective jurors Lucy

Williams and Robert Hudson for cause and by denying defense requests to question these jurors.

The record is inadequate to show that these jurors “unequivocally indicated an unyielding bias”

against the state. State v. Smith, 352 N.C. 531, 544, 532 S.E.2d 773, 783 (2000), cert. denied,

___ U.S. ___, 149 L.Ed.2d 360 (2001).              Instead, the record shows that these jurors expressed

concern about aspects of the case and uncertainty about the circumstances under which they

could vote in favor of guilt or death. The inadequate voir dire of prospective jurors and the

resulting exclusion of jurors without an adequate basis in the record violated defendant's

constitutional rights to a fair and impartial jury, to a reliable sentencing hearing and to due

process of the law as guaranteed by the Sixth, Eighth and Fourteenth Amendments of the United

States Constitution and Article I, §§ 19, 23, 24 and 27 of the North Carolina Constitution. The

error is structural, and requires a new trial or, in the alternative, a new sentencing hearing. 3


                 A.       The record does not justify the excusal for cause of
                          prospective juror Lucy Williams.

        Ms. Williams told the trial court that she was casually acquainted with defendant, that she

had known defendant‟s adoptive mother for years, and that defendant‟s adoptive mother was a

“very good friend” of her own mother‟s. The following colloquy ensued:




        3
           Defendant recognizes that this Court has reviewed errors occurring during voir dire for abuse of
discretion. E.g., State v. Williams, 339 N.C. 1, 22, 452 S.E.2d 245, 258 (1994), cert. denied, 516 U.S. 833, 133
L.Ed.2d 61 (1995). Defendant contends that the inadequate voir dire in this case and the resulting structural and
constitutional error render the abuse of discretion standard inapplicable or, in the alternative, readily satisfied.
                                 42

THE COURT: The fact that you know him in the manner that you
described and know his mother in the way you have told us, would
that prevent you – would that be something that you would carry
into this case and would prevent you from being able to be
impartial?

MS. WILLIAMS: I don’t know. I really couldn’t say because like
I said, she‟s a very good friend, she‟s a very good friend of my
mother‟s and I‟ve known her for years.

THE COURT: Okay. And only you would know, but what I‟m
asking you is, the fact that you know her in the way that you‟ve
described, do you believe that would be something that you would
take – if you were selected as a juror, that would be something that
you would take with you into the jury room and would affect how
you would decide issues …

MS. WILLIAMS: (Interjected) It might.

THE COURT: … of guilt or innocence?

MS. WILLIAMS: I think so because I just care a lot about her.

THE COURT: Care a lot about her?

MS. WILLIAMS: About his mother; yes.

THE COURT: Would you be able to set that aside?

MS. WILLIAMS: I really couldn’t say.

THE COURT: I mean there‟s no right or wrong answers, I want
you to understand that, nobody is trying to …

MS. WILLIAMS: (Interjected) Yeah, I understand what you‟re
saying and I‟m trying to understand it myself. I wouldn‟t want, I
wouldn’t know if it would, you understand what I’m saying? I
wouldn’t know if it would come up because I’ve never been
through this before.

THE COURT: Yes, ma‟am. Well, because we don‟t – I would say
to you as I would to the other members of the jury panel, this case,
both the State and the defendant are entitled to a trial and a jury‟s
decision …

MS. WILLIAMS: (Interjected) I know.

THE COURT: … based upon the evidence that comes out here in
the courtroom .
                                43

MS. WILLIAMS: (Interjected) Yeah, what happened.

THE COURT: … in accordance with the law and not based upon
personal acquaintances …

MS. WILLIAMS: (Interjected) I know. I know.

THE COURT: … in the community or maybe even what people
are saying in the community but based upon what happens here,
the evidence and the law.

MS. WILLIAMS: (Interjected) Yeah, what‟s right and what‟s
wrong.

THE COURT: And would you be able – what I‟m asking you is
whether you would be able if you were selected as a juror to base
your verdict upon the evidence and the law that comes out during
the trial or whether you feel like that your personal acquaintance
with the defendant and his family, or his mother would – that
would be something that you would not be able to set aside, that it
would play a part in your verdict?

MS. WILLIAMS: I think it would hinder it.

THE COURT: Okay. You believe it would cause you a problem?

MS. WILLIAMS: I think it would.

THE COURT: And you would – and your verdict, if you were to
arrive at a verdict in this case it would be affected by …

MS. WILLIAMS: (Interjected) The way I feel about her.


THE COURT: … not wanting to – about how you care for his
mother?

MS. WILLIAMS: That‟s right.

THE COURT: All right. And then that would – if the evidence,
well, let me move right on then, if the evidence and the law in this
case satisfied you beyond a reasonable doubt that the defendant
was guilty of murder in the first degree or first degree burglary or
first degree sex offense or any lesser included offenses, would you
be able to return such a verdict or would your personal
acquaintance and friendship with his mother prevent you or impair
you from being able to do that?
                              44

MS. WILLIAMS: I would have to do the right thing now. I would
have to do that. If this happened I would have to do the right
thing.

THE COURT: Okay.

MS. WILLIAMS: I know what bothers me with his mother, I know
that’s true, but I mean right is right.

THE COURT: So you would, even though it would cause you –
would concern you …

MS. WILLIAMS: (Interjected) Yes, it would be very much
concerning me.

THE COURT: … you would be able then to set it aside?

MS. WILLIAMS: Uh huh …

THE COURT: Now, ma‟am, you need to listen to me.

MS. WILLIAMS: I know what you‟re saying and …

THE COURT: I just want to be sure I understand what you‟re
saying.

MS. WILLIAMS: Yeah.

THE COURT: If you can‟t set it aside just, you know…

MS. WILLIAMS: (Interjected) I don‟t think so.

THE COURT: You could not set it aside?

MS. WILLIAMS: No, I don‟t think so. I really don‟t.

THE COURT: So it would prevent you from being able to return a
verdict …

MS. WILLIAMS: (Interjected) Yes, I think so.

THE COURT: … of guilty …

MS. WILLIAMS: (Interjected) Uh huh, it would.

THE COURT: … because of your friendship with his mother?

MS. WILLIAMS: Uh huh.

THE COURT: And now you‟re sure of that, ma‟am?
                                                 45

               MS. WILLIAMS: I‟m sure, yes.

               THE COURT: I‟m not putting words in your mouth.

               MS. WILLIAMS: I know you‟re not. No, I‟m sure of it.

               THE COURT: Do I clearly understand what you‟re saying now?

               MS. WILLIAMS: Yes, uh huh, yes.

               THE COURT: The State have a motion?

               MR. CAUDLE: For cause, Your Honor.

               THE COURT: State‟s challenge for cause is allowed.

               MR. BARNES: We would object.

               THE COURT: Defendant‟s objection to the Court allowing the
               State‟s challenge for cause is overruled and denied.

               MR. BARNES: Request an opportunity to rehabilitate.

               THE COURT: Your request to get her to seek to change her mind
               is denied.

Tpp.138-144 (emphases added).


       The record shows that Ms. Williams was at first simply unable to say whether or not she

could set aside her feelings about defendant‟s mother.       She was clear about the basis of her

uncertainty: she had never experienced a trial of this nature before. The trial court then asked a

series of leading questions guiding the juror toward disqualification based on her feelings about

defendant‟s mother: “that would be something that you would take with you into the jury room

and would affect how you would decide issues”; that would be something that you would not be

able to set aside, that it would play a part in your verdict”; “if you were to arrive at a verdict in

this case it would be affected by …how you care for his mother”. Predictably, Ms. Williams

gave the answers contained within these leading questions and began to move toward

disqualification.
                                                  46

       But when the trial court posed a balanced question that did not incorporate a ready-made

answer but did incorporate the evidence and the law that Ms. Williams would be obliged to

consider as a juror, she gave a very different response. She clearly and unequivocally stated her

ability to set aside her feelings in order to “do the right thing” in keeping with her duty as a juror.

The trial court promptly guided her back toward disqualification: “Now, ma‟am, you need to

listen to me”; “if you can‟t set it aside, just, you know …”; “you could not set it aside”; “it would

prevent you from returning a verdict”.      As an ironic finale, the trial court told Ms. Williams,

“I‟m not putting words in your mouth.” Once again, the juror agreed with the court.


       Ms. Williams‟ strong, repeated statement that she would “have to do the right thing” as a

juror despite her personal feelings showed that she had the capacity to render a fair and impartial

verdict. See N.C. Gen. Stat. § 15A-1212(9). The record also shows that the trial court‟s leading

questions guided this juror away from her conviction that “right is right.” It was fundamentally

unfair for the trial court prevent defendant from exploring, through balanced voir dire, the real

depth and strength of Ms. Williams‟ commitment to doing “the right thing.” It was particularly

unfair of the court to cast the defense request as an attempt to “get her … to change her mind.”

To the contrary, this Court has recognized that capital defendants should have the chance to

contribute their “unique perspective and insight to the questioning” particularly where, as here,

the juror‟s clear, unequivocal acknowledgment of her duty shows that defense questioning likely

would have “elicited a different response” and outcome. State v. Brogden, 334 N.C. 39, 53, 430

S.E.2d 905, 913 (1993).


       Erroneous excusal of a qualified juror is reversible per se. Grey v. Mississippi, 481 U.S.

648, 95 L.Ed.2d 622 (1987). As the United States Supreme Court held in Grey, adequate voir

dire is a prerequisite to granting a for-cause challenge. Specifically, the Court noted, the record
                                                47

before it was “inadequate” to support the excusal of jurors who had concerns about capital

punishment because


                despite their initial responses, the venire members might have
                clarified their positions upon further questioning and revealed that
                their concerns about the death penalty were weaker than they
                originally stated. It might have become clear that they could set
                aside their scruples and serve as jurors.

481 U.S. 648, 662-63, 95 L.Ed.2d 622 (1987) (ordering new trial; inadequate voir dire precludes

effective appellate review); Smith, 352 N.C. at 544, 532 S.E.2d at 782 (“the better practice” is to

conduct voir dire “that focuses on the juror‟s ability to be responsible, reflective, and fair-

minded”); State v. Anderson, 197 Ariz. 314, 4 P.3d 369 (2000) (ordering new trial for juror

excusals based on inadequate voir dire).


        The Sixth Amendment and federal due process rights to trial by an impartial fact-finder

are “fundamental to the American scheme of justice” and apply to state court proceedings.

Duncan v. Louisiana, 391 U.S. 145, 149, 20 L.Ed.2d 491, 496 (1968); Tumey v. Ohio, 273 U.S.

510, 71 L.Ed.2d 749 (1927); U.S. Const. amends. V, VI, XIV.         The same rights are protected

under the North Carolina Constitution. State v. Thomas, 344 N.C. 639, 645, 477 S.E.2d 450, 452

(1996); N.C. Const. art. I, §§ 19, 23, 24. These protections are heightened in a capital case.

Specifically, the state “may not entrust the determination of whether a man should live or die to a

tribunal organized to return a verdict of death.” Witherspoon v. Illinois, 391 U.S. 510, 520, 20

L.Ed.2d 776 (1968); U.S. Const. amend. VIII; N.C. Const. Art. I, § 27; see William J. Bowers,

Marla Sandys, & Benjamin D. Steiner, “Foreclosed Impartiality in Capital Sentencing: Jurors‟

Predispositions, Guilt-trial Experience, and Premature Decision-Making,” 83 Cornell L. Rev.

1476, 1540-41 (1998) (data showing death-prone jurors evade challenges disproportionally to

life-prone jurors).
                                               48

       One purpose of jury voir dire is to determine whether jurors who have concerns about the

case are nevertheless “capable of and willing to conscientiously apply the law to the facts

adduced at trial.” Smith, 352 N.C. at 543, 532 S.E.2d at 782 (internal citations and quotation

marks omitted).     The Constitution places the burden of exclusion upon the proponent.

Wainwright v. Witt, 469 U.S. 412, 423, 83 L.Ed.2d 841, 851 (1985). In determining whether or

not the state has met its burden of proving equivocal jurors to be subject to for-cause challenge,

"the trial court must be zealous to protect the rights of an accused" protected by the Sixth and

Fourteenth Amendments. Dennis v. United States, 339 U.S. 162, 168, 94 L.Ed. 734 740 (1950)

(quoted in Witt, 469 U.S. at 429, 83 L.Ed.2d at 855). Because Witherspoon "is not a ground for

challenging any prospective juror" but instead "a limitation on the State's power to exclude,"

Adams v. Texas, 448 U.S. 38, 47-48, 65 L.Ed.2d 581, 591 (1980), a new sentencing hearing is

required where a trial court rejects jurors who do no more than express personal reservations

about the case. Witherspoon, supra; Adams, supra; Boulden v. Holman, 394 U.S. 478, 22

L.Ed.2d 433 (1969). Consequently, limited inquiry “is appropriate only when the prospective

juror‟s bias is „unmistakably clear[.]‟” Smith, 352 N.C. at 545, 532 S.E.2d at 783. Applying

these constitutional standards, the state failed to meet its burden with respect to prospective

jurors Williams and Hudson.


               B.     The record does not justify the excusal of prospective juror
                      Robert Hudson.

       Mr. Hudson‟s voir dire followed pattern a similar to Ms. Williams‟. Each juror began by

expressing understandable uncertainty about the predicted result of deliberations in defendant‟s

case. Each was nudged toward disqualification through leading questions. Each spontaneously

resisted the leading questions and expressed a capacity to consider the evidence in light of the

law. Each was ultimately was excused over objection and without any opportunity for follow-up

questioning from the defense.
                                               49

       Mr. Hudson was first asked whether he would be equally able to vote for the death

penalty as for life imprisonment without parole. The following colloquy ensued:


              MR. HUDSON:            That’s kind of hard to say because I don’t
              know him [defendant] and you never know what triggers a person
              to do what they do so I can’t say. I can’t say.

              MR. CAUDLE:            You understand, Mr. Hudson, that in order
              for you to sit on this particular jury anybody who does sit on this
              particular jury has to be able to say what they can do. Now, do
              you also understand, Mr. Hudson, that nobody should and nobody
              will say, well, all right, tell us what you gone do because you
              haven‟t heard the evidence, haven‟t heard the law.

              MR. HUDSON:            Right.

              MR. CAUDLE:            But would you agree that they are good
              people who would just come right out and say, yes, I can do this
              thing or no I can‟t do it, I mean they are able to tell whether or not
              they could upon hearing the evidence, hearing the law that they
              could stand up and vote to put this man to death.

              MR. BARNES:            Objection.

              MR. HUDSON:            So am I able to …

              THE COURT:             (Interjected) Sustained.

              MR. HUDSON:            … vote with them?

              THE COURT:             You don‟t need to answer that, sir, he‟s
              going to rephrase his question.

              MR. CAUDLE:            You understand that anybody who sits on
              this jury must be able upon hearing the evidence and the law must
              be able upon finding this defendant guilty of first degree murder,
              they must be able to recommend life imprisonment without parole.
              You understand?

              MR. HUDSON:            (Nods his head.)

              MR. CAUDLE:            Are you saying that that‟s something that
              you …

              MR. HUDSON:            (Interjected) I can probably recommend him
              life in prison.
                                50

MR. CAUDLE:             But insofar as recommending the death
penalty, you feel that‟s something you just couldn‟t do?

MR. HUDSON:           Right now in this point in my life I can‟t say
death penalty because of stuff that‟s been going on with my life so
I can’t say.

MR. CAUDLE:           Is that coming from a religious conviction
that you have or a personal conviction that you have, or moral
conviction that you have?

MR. HUDSON:           It‟s both, personal and religious.

MR. CAUDLE:            Okay. Is this a conviction that you‟ve had
for some time or, and if so, can you tell us how long it‟s been?

MR. HUDSON:            Over about three years and then when I
started school they motivated us like during different times of the
class and stuff and they changed like my thoughts and my thinking
and so I can’t say.

MR. CAUDLE:           But would it be fair and honest to say that as
a matter of conscience that regardless of what the facts are in this
case or any other case that recommending the death penalty is just
something you couldn‟t do?

MR. BARNES:           Objection.

THE COURT:            Overruled.

MR. CAUDLE:           You may answer that.

MR. HUDSON:           I think it’s something that I could do but I
got to hear the evidence and get down into it before I can say if I
can say that he should be put to death or if he was found guilty he
should be put to death, so I can’t say. I can’t say. I can’t say.

MR. CAUDLE:            So as you sit there right now this morning
would it be fair and honest to say that upon hearing the evidence
and the law that you could say right now that you could vote that
he receive life imprisonment without parole, could you do that?

MR. BARNES:           Objection.

THE COURT:            Overruled.


MR. CAUDLE:           Could you do that?
                                               51

              MR. HUDSON:          That by hearing the evidence that if I found
              guilty I recommended life in prison?

              MR. CAUDLE:            Yes.

              MR. HUDSON:           Depends on if he can get like some type of
              psychology and you know check out his head and brain and all that
              I might – I don’t know.

              THE COURT: Mr. Hudson – excuse me, Mr. Caudle.

Tpp. 558-562 (emphases added).


       At this point, the trial court instructed Mr. Hudson briefly on aspects of the law

governing capital sentencing deliberations. During the collective voir dire, the trial court had

previously instructed other jurors at some length on the same topic. The trial court asked

whether Mr. Hudson could “conceive of some set of facts and circumstances” under which he

could vote for death. Mr. Hudson answered that he could not. The trial court then inquired

whether this was due to Mr. Hudson‟s “religious and moral and personal beliefs.” Mr. Hudson

clarified, “About the death penalty?”    The trial court responded, “Yes, sir.”     Mr. Hudson

answered, “Yes, sir, but …”. The trial court did not allow him to finish his answer. Instead, the

court interrupted with a hypothetical question about imposing the death penalty and the juror

responded that he would not be able to vote for death. The trial court asked, “And that would be

no matter what the facts are, no matter what the circumstances might reveal? Is that correct or

not?” The juror answered, “That‟s correct.” Tpp. 563-65.


       The colloquy continued as follows:


              THE COURT: You would then always recommend a sentence of
              life imprisonment without parole, correct?

              MR. HUDSON: Yes, yes, sir.

              THE COURT:         And never recommend a sentence of death,
              correct?
                                                52

               MR. HUDSON: Yes, yes, sir, it’s hard to say, it’s really hard to
               say, hard to say.

               THE COURT: Wait a minute now, tell me – a minute ago I
               thought you had said you would always recommend a sentence of
               life imprisonment.

               MR. HUDSON: See, I‟m like the lady that just left, I mean it‟s
               still – that‟s two deaths, you know, that‟s like religious, the Bible
               says “Thou shalt not kill,” that he‟ll take care of your enemies or
               whatever.

               THE COURT: Yes, sir. So that would prevent you then from
               being able to recommend a sentence of death?

               MR. HUDSON: Yes, sir. If you would have called me three years
               back maybe.

               THE COURT: Three years ago you might have been able …

               MR. HUDSON: (Interjected) I might have, yeah, I might have.

               THE COURT: But now you can‟t?

               MR. HUDSON: I can‟t since I been reading the Bible and stuff,
               you know.

Tpp. 565-67. The state‟s for-cause challenge was allowed over objection. Defendant‟s request

to question the juror was denied. Tp. 567.


       Like the voir dire of Ms. Williams, this record is inadequate to justify Mr. Hudson‟s

excusal. Instead, the record shows that questioning by the defense would likely have led to

different responses.   Counsel should have had an opportunity to follow up on Mr. Hudson‟s

stated willingness to base his decisions on the evidence and to consider death as a possible

punishment. The excusal of these jurors based on the inadequate voir dire constituted reversible

error. Grey v. Mississippi, supra; Brogden, supra. Defendant must receive a new trial or, in the

alternative, a new sentencing hearing.
                                                 53

          IV.    THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
                 OVERRULING DEFENDANT’S     OBJECTIONS   TO THE
                 PROSECUTOR’S RACIALLY DISCRIMINATORY EXERCISE OF
                 PEREMPTORY STRIKES.

                 Assignment of Error No. 15, Rp. 221.
                 Assignment of Error No. 16, Rp. 221.

          The right to a jury selection process free from racial discrimination is protected by the

state and federal constitutions. U.S. Const. amends. VI, XIV; Batson v. Kentucky, 476 U.S. 79,

90 L.Ed.2d 69 (1986); N.C. Const. art. I, §§ 19, 26; State v. King, 353 N.C. 457, 546 S.E.2d 575

(2001).     Before trial, defense counsel filed a Motion to Prohibit District Attorney from

Peremptorily Challenging Prospective Black Jurors. As an alternative, the motion requested that

the state establish on the record its reasons for any peremptory strikes of African-Americans.

Rpp. 32. The trial court denied the motion. Tp. 116.


          The prosecutor then exercised four out of five peremptory strikes against African-

Americans. In total, the state exercised five of its six peremptory strikes against African-

Americans.      Thus, 83% of the state‟s peremptory strikes were directed at members of

defendant‟s race. The defense posed Batson objections to each of these strikes. The trial court

overruled the first four objections on the basis that the defense failed to make a prima facie case.

Consequently, the jurors were excused without the prosecutor being required at that time to

justify the strikes with race-neutral reasons and without any contemporaneous opportunity for the

defense to rebut such attempted explanations. Tpp. 268-270 (prospective jurors Johnston and

Manning); 746-48 (prospective jurors Gordon and Bowser); 1227-28 (prospective juror

McDowell); Tp. 915-16, Rp. 14 (incorporating jury questionnaires into Record on Appeal).


          The trial court erred in holding that defendant failed to make a prima facie case of race

discrimination with respect to the first four African-American jurors. Defendant is African-

American; the victim was white; the state used peremptory challenges to strike members of
                                                        54

defendant‟s race. Moreover, at the point of the first Batson objection, 100% of the state‟s

peremptory strikes had been directed at African-Americans. At the point of the fourth Batson

objection, the rate had dropped only slightly to 80%.                      The same “high percentage of

peremptories to remove blacks” supports the inference of racial discrimination. State v. Smith,

328 N.C. 99, 123, 400 S.E.2d 712, 725 (1991); Batson, 476 U.S. at 96, 90 L.Ed.2d at 87-88;

Jordan v. Lefevre, 206 F.3d 196 (2d Cir. 2000) (three of ten peremptory strikes against members

of defendant‟s race raises prima facie case.)


        Moreover, as in Smith, the record in defendant‟s case shows that “race-consciousness by

both parties played a role throughout jury selection.” 328 N.C. at 122, 400 S.E.2d at 725. The

record also shows that the trial court was well aware of that fact. For example, the trial court

commented sua sponte on the racial composition of defendant‟s peremptory strikes. Tp. 1220.

Moreover, when the state exercised its final peremptory strike against an African-American

juror, the trial court ordered the state to justify its peremptory strikes despite the fact that defense

counsel withdrew its Batson objection.4 Tpp. 1227-30.


        The prosecutor offered the following reasons for exercising more than 80% of its

peremptory strikes against African-Americans: Ms. Manning knew the defendant‟s adoptive

mother, who was a friend of Ms. Manning‟s parents; the defendant‟s mother had provided

mortuary services for a family member of Ms. Manning; and the prosecutor questioned this juror

about her “being Jehovah‟s Witness and sitting in judgment.” Mr. Johnston was married to a

legal assistant or secretary in the office of one of defendant‟s lawyers “and had discussed the

case” with his wife. Tp. 1231. Ms. Gordon was described as showing “not only a lack of

understanding of the process but a reluctance to participate in it.” Mr. Bowser had a DWI


        4
           Counsel apparently withdrew the objection because the trial court didn‟t hear it and allowed the juror to
leave the courtroom before ruling on the motion. The trial court conceded, “It‟s my fault. I wasn‟t listening.” Tpp.
1227-30.
                                                55

conviction and gave “weak” answers regarding the death penalty. Mr. McDowell “appeared to

be suffering from some mental challenge,” had siblings just released from jail for “little stuff …

like shoplifting or breaking and entering.”    The defense offered no rebuttal. The trial court

found the proffered reasons race-neutral. Tp. 1233-34.


        Thereafter, the state effectively rebutted its showing of race neutrality by registering a

“reverse Batson” challenge and highlighting its concerns about specific racial factors animating

the case.   Smith, 328 N.C. at 122-23, 400 S.E.2d at 725 (prosecutor‟s remarks regarding race

support prima facie case under Batson); Valdez v. People, 966 P.2d 587 (Colo. 2000) (same).

The state‟s argument proceeded as follows:


               MISS HINTON:           Your Honor, the State objects on what we
               call reverse Batson, State v. Cofield, 129 N.C. App. 268 which we
               would be prepared at this time to make a showing that the
               defendant‟s use of his peremptory challenges to this point have
               been used on a racial basis and made for racial reasons. Out of the
               fifteen, well, sixteen challenges that the defendant has sought to
               make, eleven of those were white female and four of those were
               white males. Being that the defendant in this case is a black male,
               the victim in this case being a white female, the race of a key
               witness in this case we would suspect at this time or have reason to
               believe at this time will be Caucasian or white. Their statement
               made by the defendant to others tending to, specifically to Troy
               Fleming, tending to indicate that this crime may have been racially
               motivated.

                       As I‟ve stated the defendant has repeatedly used
               peremptory challenges against white jurors or Caucasian jurors, the
               use of their peremptory challenges has been disproportionate in
               that they have excused sixteen jurors, only one of those jurors
               being a black male or of the Afro-American descent.

Tpp. 1320-21. At that point the jury comprised ten African-Americans, two whites, and one

Hispanic/White. Tp. 1321. Subsequently two more white alternates were seated. Tpp. 1379,

1415.
                                                56

       Other factors in addition to the state‟s argument on its reverse Batson objection rebut its

case for race neutrality. The record does not support aspects of the state‟s proffered defense.

Moreover, the record shows that the state treated similarly-situated white jurors differently. Ms.

Manning stated that her parents‟ acquaintance with defendant‟s adoptive mother would have no

effect on her findings in the case. She also stated that she had visited a Jehovah‟s witness church

but did not adopt the teachings with respect to sitting in judgment. Tpp. 215, 218. Mr. Johnston

stated that his wife‟s role would not affect his verdict and that the only discussion of the case

consisted of his reporting for jury duty and her knowledge that a murder case was being called.

Tpp. 211-12.


       The record also belies the prosecutor‟s proffered reasons for excusing Mr. Bowser. His

answers to death-qualification questions were not weak. They were prompt, clear, and decisive.

Tpp. 744-45. Moreover, white jurors with such minor convictions as Mr. Bowser‟s, or with

relatives having criminal convictions, were passed by the state without objection. Tpp. 414,

1194, 1247 (prospective white jurors Ruble, Edwards, and Smith).


       The record also shows that the state‟s proffered reasons for excusing Ms. Gordon were

pretextual. Ms. Gordon had an excellent reason for showing “a lack of understanding of the

process” of capital deliberations. The trial court admitted that her panel had never received

instructions on the subject.   Far from showing “reluctance to participate in the process,” Ms.

Gordon took the initiative to point out the problem to the trial court and ask for information in

order to give intelligent answers to the trial court‟s preliminary questions. Once Ms. Gordon was

fully instructed, she stated, “I have a good understanding of it now, thank you.” Tpp. 653-59.

The remainder of Ms. Gordon‟s voir dire shows that she was attentive, engaged, and responsive

to the questions of the trial court and the prosecutor. She continued to request additional
                                                57

information when she needed it. She stated clearly that she could decide the case in both phases

based on the evidence. Tpp. 650-52, 659-60, 720-46.


       Moreover, numerous white jurors situated similarly to Ms. Gordon were passed by the

state without objection. Tpp. 151-75, 193-95, 222-26, 231-33, 236-38, 243-45, 264-65, 305-19,

328 (first round voir dire and passing of prospective white jurors Ruble, Wood, Marsh,

Liverman, White, and Bunting); Tpp. 423-26, 435-43, 455-58, 464-66, 470-73, 481-85, 493-504,

522-34, 570-74, 583-90 (second round voir dire and passing of prospective white jurors Jenkins,

Robertson, Clay, Meixell-Dech, and Harrison); Tpp. 715-19, 746, 781-83, 799-800, 883-87

(third round voir dire and passing of prospective white juror Outland); Tpp. 941-45, 961-83

(fourth round voir dire and passing of prospective white jurors Cook and Ellis); Tpp. 994-97,

1006-19 (fifth round voir dire and passing of prospective white juror Long); Tpp. 1031-50 (sixth

round voir dire and passing of prospective white juror Woodruff); Tpp. 1092-1112, 1169-86,

1198-1214, 1235-79, 1290-1306, 1350-69, 1380-96 (voir dire and passing of prospective white

alternates Shearin, Edwards, Brooks, Smith, Barnhill, Viverette, and Ellington).


       In addition, the record shows that the prosecutor never even questioned white jurors

Bunting and Outland before exercising peremptory strikes against the four African-American

jurors seated with them in the box. Tpp. 264-68, 715-46. Conversely, the prosecutor singled out

African-Americans in the panel for questions about their personal lives. Similar questions were

not directed at the white prospective jurors sitting in the same box. Tpp. 319-24. These facts

heightens the inference of race discrimination in the state‟s use of peremptory strikes.


       The trial court committed reversible error in overruling defendant‟s Batson objections.

Defendant must receive a new trial or, in the alternative, a rehearing on his objections to the

improper excusal of these jurors.
                                                 58

       V.      THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
               EXCUSING JURORS ON THE BASIS OF AGE.

               Assignment of Error No. 17, Rp. 221.


       The trial court excused two prospective jurors because they were over sixty-five years of

age. Tpp. 1127, 1192 (prospective jurors Whitehead and Braswell). The trial court excused

these jurors solely on the basis of the court‟s mistaken belief that “if you‟re over sixty-five years

of age the law allows me to allow you to be excused if you ask to be excused.” Tpp. 1127, 1192.

Although Defendant did not object to these excusals, they violated North Carolina law. The trial

court's plain or, in the alternative, structural error requires new trial in this case. State v. Odom,

307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (defining plain error); Grey v. Mississippi, 481

U.S. 648, 95 L.Ed.2d 622 (1987) (erroneous dismissal of qualified juror is structural error); State

v. Montgomery, 331 N.C. 559, 574-77, 417 S.E.2d 742, 750-52 (1992) (violations of N.C.

Const. Art. I, § 26 compromise integrity of judicial system; harmless error review inapplicable)

(Frye, Exum, and Whichard, JJ., concurring in order for new trial).


       Chapter 9 of the General Statutes governs resolution of this issue. In interpreting these

statutes, this Court must first look to their plain meaning. Nelson v. Battle Forest Friends

Meeting, 335 N.C. 133, 436 S.E.2d 122 (1993). Under the plain language of North Carolina‟s

laws, senior citizen status, standing alone, has never been a basis for excusal from jury service.

To the contrary, "jury service is the solemn obligation of all qualified citizens," with bases for

disqualification and excuse drawn very narrowly. N.C.G.S. §§ 9-3, 9-6(a) (1999); State of North

Carolina Courts Commission, Report of the Courts Commission to the North Carolina General

Assembly (1967).       Under the statutes, potential jurors may be disqualified only for

noncitizenship, prior jury service within the last two years, physical or mental incompetence,

disability in hearing or understanding English, having felony convictions, or being under 18
                                                         59

years old. N.C.G.S. § 9-3. Potential jurors may be excused only for “compelling personal

hardship.” N.C.G.S. § 9-6(a).


         The legislature did not list senior status as a basis for disqualification or hardship excusal.

In fact, while the General Assembly enacted the 1967 recommendations of the Courts

Commission virtually in toto, a later recommendation for a blanket exemption of jurors over the

age of seventy was rejected. State of North Carolina Courts Commission, Report of the Courts

Commission to the North Carolina General Assembly (1969).                          Stripping North Carolina‟s

already-thin venires of their wisest and most experienced members is not sound public policy.


         Moreover, in 1985, the General Assembly made clear that senior citizens are not

automatically exempt from the civic duty imposed by section 9-6(a) when it expressly eliminated

a reference to senior status from the list of three bases for exclusion.5 As a purely procedural

courtesy to North Carolina's senior citizens, the legislature provided that a juror over 65 years of

age may affirmatively "establish his exemption" from jury service by presenting a written request

to the court for excusal at least five days prior to the date of summons. N.C.G.S. § 9-6.1. In

keeping with the public policy and terms of service stated in 9-6(a), however, the court may

reject such a request. Id.


         Senior citizens who choose not to follow the § 9-6.1 procedure by submitting a written

request in advance of voir dire must answer the summons and appear in court. The crucial point

is that regardless of which procedure a senior citizen follows, he is at all times on exactly the




         5
            Prior to 1985, the statute permitted excuses from jury service on just three bases: (1) "for reasons of
compelling personal hardship;" (2) where "requiring jury service would be contrary to the public welfare," as in the
case of public health or safety personnel; or (3) where a court granted the written request for an exemption submitted
at least five days prior to the date of summons by a juror aged sixty-five or over, as provided in N.C.G.S. § 9-6.1.
Thus, the legislature chose to reduce the permissible bases for excusal from three to two. N.C.G.S. § 9-6(a) (1986
& Supp. 1997) (Commentary). Even earlier, the legislature rejected the recommendation of the Courts Commission
                                                      60

same substantive footing as all other potential jurors, and must establish a basis for

disqualification or excuse as provided in the statute and on the record. North Carolina General

Court of Justice, Administrative Manual for Chief District Court Judges (1994) at p. 9 ("G.S. 9-

6.1 does not authorize the excuse from jury service of any person over the age of 65, it simply

requires that such persons' applications for excuse be answered prior to the date of their

service"); James C. Drennan and Miriam S. Saxon, A Manual for North Carolina Jury

Commissioners 11 (Institute of Government, 1993) ("G.S. 9-6.1 ... does not constitute a blanket

exemption or disqualification" for senior citizens).


        Despite the plain language of the statute, the trial court erroneously excused two

prospective jurors solely on the basis of age. Under the Sixth Amendment to the United States

Constitution and Article I, section 26 of the North Carolina Constitution, such improper excusal

of a qualified juror is structural error, requiring automatic reversal. Gray v. Mississippi, supra;

State v. Montgomery, supra.


        If this Court were to approve the trial court‟s reading of the statutes (in contradiction of

their plain language, their legislative history, and the interpretive guidelines that govern their

application), they would be rendered unconstitutional on a number of grounds. First, under the

trial court‟s interpretation, the statutes violate the fair cross-section requirement of the Sixth

Amendment by allowing the arbitrary removal of jurors on a discriminatory basis unrelated to

their ability to serve. Lockhart v. McCree, 476 U.S. 162, 90 L.Ed.2d 137 (1986); Taylor v.

Louisiana, 419 U.S. 522, 42 L.Ed.2d 690 (1975).                 The statutes would also impermissibly

discriminate on the basis of age, in violation of the equal protection clauses of the Fourteenth



for a blanket exemption of jurors over the age of seventy. See State of North Carolina Courts Commission, Report
of the Courts Commission to the North Carolina General Assembly (1969).
                                                 61

Amendment and Article I, § 19 of the North Carolina Constitution. See Gregory v. Ashcroft, 501

U.S. 452, 115 L.Ed.2d 410 (1991).


       Because this Court must interpret statutes to avoid such serious constitutional questions,

Nelson, 335 N.C. at 137, 436 S.E.2d at 125, the excusal of these jurors must be ruled plain or

structural error, and Defendant must receive a new trial. Grey, supra; Montgomery, supra

(concurring opinion).


       Defendant acknowledges the relevance of this Court's decision in State v. Nobles, 350

N.C. 483, 515 S.E.2d 885 (1999). The issue in Nobles was whether the trial court violated the

defendant's right to be present at all stages of his capital trial by excusing a juror from the venire

ex parte. The trial court stated on the record that the juror had been excused because he was

"over sixty-five." Nobles, 350 N.C. at 494, 515 S.E.2d at 892. In holding that no constitutional

violation had occurred, this Court did not discuss the text of the statutes governing jury service,

the legislative history of those statutes, or the guidelines for their application by district court

judges. Defendant respectfully contends that, to the extent that the Nobles decision implies that

senior status is a basis for excusal from jury service in North Carolina, that implication is

mistaken and renders the relevant statutes unconstitutional.


       Should this Court rule that defense counsel waived Defendant‟s rights to appeal this issue

in any way, defendant asks the Court to examine the record for prejudicial error. State v.

Warren, 289 N.C. 551, 553, 223 S.E.2d 317, 319 (1976). In the alternative, defendant contends

that the trial court committed plain or structural statutory and constitutional error, rendering these

capital proceedings fundamentally unfair in violation of the defendant‟s rights to due process and

in violation of his rights to a fair and reliable capital sentencing hearing. U.S. Const. Amends. V,

VIII, XIV; Ford v. Wainwright, 477 U.S. 399, 411, 91 L.Ed.2d 335, 347 (1986) (requiring

“heightened standards of reliability” in all capital proceedings); Grey, supra (excusal of qualified
                                                62

juror is structural error); N.C. Const. Art. I, §§ 19, 27; G.S. 15A-1446(b) (reviewing court may

reach errors affecting substantial rights despite trial waiver); State v. Odom, 307 N.C. 655, 660,

300 S.E.2d 375, 378 (1983) (establishing plain error standard). In the alternative, Defendant

respectfully requests that this Court exercise its discretionary authority under Rule 2 to correct

the errors.


        Should this Court rule against Defendant on this Issue on the basis of trial waiver,

Defendant contends that such waiver constituted ineffective assistance of counsel in violation of

Strickland v. Washington, 466 U.S. 668, 689, 80 L.Ed.2d 674 (1984) and State v. Braswell, 312

N.C. 553, 324 S.E.2d 241 (1985); see State v. Fair (No. 506A99, October 5, 2001)

<http://www.aoc.state.nc.us/www/public/sc/opinions/2001/506-99-1.htm>            at   pp.    19-20

(requiring defendants to raise IAC on direct appeal or risk waiver).


        There can be no strategic reason for failing to correct the trial court‟s mistaken

understanding of the law and thereby protect the client‟s right to a fair and representative jury.

Prejudice is established if this Court decides this Issue against Defendant under a standard lesser

than the Chapman-1443(b) standard. Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705

(1967). Thus, whether or not the trial court‟s statutory and constitutional error is preserved,

Defendant must receive a new trial.


                                         TRIAL ISSUES

        VI.    THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
               FAILING TO CONDUCT A HEARING AND RULE ON
               DEFENDANT’S MOTION FOR INVESTIGATION OF ALLEGED
               PROSECUTORIAL MISCONDUCT.

               Assignment of Error No. 30, Rpp. 225-26.


        Before trial, defendant filed a pro se motion alleging that the prosecution against him was

tainted by perjury and racial and political bias. He alleged that as a result he was not receiving
                                               63

equal protection of the law and that his prosecution would be a miscarriage of justice.        In

support, defendant filed handwritten complaints specifying instances of bribery or coercion of

prospective witnesses and the use during interrogation by police of “racial overtones” and

references to defendant‟s religious beliefs and his association with black organizations. Rpp.

112-24.


       The motion was re-filed through counsel during trial. During a later colloquy on the

matter, the trial court recognized defendant‟s request for an investigation and made a magistrate

available in order for the complaint to be processed. In a subsequent colloquy, defendant stated

that he had followed the procedures provided. Defendant reiterated his allegation of racial bias

in the prosecution and asked for independent investigation due to the District Attorney‟s interest

in the case. Tpp. 2552-54, 2737-39, 2838-39. The record does not show that the trial court

provided the requested investigation, a hearing on the matter, or any ruling on defendant‟s

motion.


       The trial court‟s failure to act on defendant‟s motion was reversible error. Selective

prosecution in violation of a criminal defendant‟s right to equal protection is a cognizable claim

under state and federal law. See State v. Cherry, 298 N.C. 86, 103, 257 S.E.2d 551, 562 (1979).

The specific allegations in defendant‟s motion are buttressed by a record showing, as argued

above in Issue IV and incorporated herein by reference, the parties‟ and the court‟s awareness

that race was a significant factor in the case. E.g., Rpp. 32, 36-38, 43-44; Tpp. 1320-21 (state‟s

argument on “cross-Batson” objection).


       Furthermore, although the trial court did not have the benefit of it, a recent empirical

study of murder prosecutions in North Carolina between 1993 and 1997 highlights “clear and

disturbing evidence” of “patterns of racial discrimination that cannot be explained by any of the

legitimate sentencing considerations that have been sanctioned by North Carolina‟s legislative
                                                 64

and judicial branches.” Isaac Unah and John Charles Boger, “Race and the Death Penalty in

North Carolina:     An Empirical Analysis, 1993-97 (April 16, 2001) (<http://www.unc.edu/

~jcboger/NCDeathPenaltyReport2001.pdf>) at p. 2.


       The new study records racial disparities indicating discrimination, particularly against

defendants in cases like the instant one that involve white murder victims. Id. As a result, “the

odds of receiving a death sentence are increased by a factor of 3.5 when the murder victim is

white.” Id. at p. 4. The seven Halifax County cases in the study‟s database, id. at pp. 5-7,

included six African-American defendants. The prosecutor sought and won the death penalty in

four out of five of these cases. All four of the death sentences obtained in Halifax County

between 1993 and 1997 were entered against African-American defendants.             Lionel Lewis

Rogers was one of the four. State v. Clinton Smith, 96 CrS 948; State v. Michael Lemark Ward,

96 CrS 11345; State v. Jerome Braxton, 96 CrS 7429; State v. Bryant E. William, 97 CrS 3533;

State v. Carlton G. Harris, Jr., 97 CrS 2679; State v. Nelson Johnson, 93 CrS 2728. See State v.

Thompson, 349 N.C. 483, 498, 508 S.E.2d 27, 286 (1998) (reviewing court may take notice of

public records of the courts within the state judicial system).


       Defendant‟s allegations and the additional relevant available evidence indicates that he

was entitled to an investigation into his allegations of prosecutorial misconduct. The trial court

erred in failing to act on his motion and grant the requested investigation. Defendant requests

that this Court correct the error by remanding the case for an independent investigation below.


       VII.    REVERSIBLE ERROR OCCURRED WHEN THE PROSECUTOR
               WAS ALLOWED TO ATTACK, BADGER, INSULT, AND SHOUT
               AT DEFENDANT’S SOLE WITNESS, AND TO PRESENT
               IMPROPER EVIDENCE AND ARGUMENT TO THE JURY.
               Assignment of Error No. 20, Rp. 222 and Motion to Amend Record ¶ (c)(1).
               Assignment of Error No. 21, Rpp. 222-23 and Motion to Amend Record ¶ (c)(2).
               Assignment of Error No. 40, Rp. 229 and Motion to Amend Record ¶ (c)(3).
               Assignment of Error No. 41, Rp. 230 and Motion to Amend Record ¶ (c)(3).
                                                65

               Assignment of Error No. 44, Rp. 230.
               Assignment of Error No. 45, Rpp. 230-31.
               Assignment of Error No. 47, Rpp. 231-32.
               Assignment of Error No. 48, Rp. 232.


       It is well established that trial attorneys should “refrain from abusive, vituperative, and

opprobrious language, or from indulging in invectives.” State v. Sanderson, 336 N.C. 1, 10, 442

S.E.2d 33, 40 (1994) (ordering new capital sentencing hearing). A witness on cross-examination

may not be subject “to abuse, which is calculated to degrade him or to bring him into ridicule or

contempt.” Id., 336 N.C. at 12, 42 S.E.2d at 40. Likewise, during closing argument


               an attorney may not become abusive, inject his personal
               experiences, express his personal belief as to the truth or falsity of
               the evidence or as to the guilt or innocence of the defendant, or
               make arguments on the basis of matters outside the record except
               for matters concerning which the court may take judicial notice.

N.C. Gen. Stat. § 15A-1230(a) (2000).


       It is equally well established that


                a criminal defendant has a right to remain silent under the Fifth
               Amendment to the United States Constitution, as incorporated by
               the Fourteenth Amendment, and under Article I, Section 23 of the
               North Carolina Constitution. … A defendant‟s decision to remain
               silent following his arrest may not be used to infer his guilt, and
               any comment by the prosecutor on the defendant‟s exercise of his
               right to silence is unconstitutional. … district attorneys and
               assistant district attorneys have a duty as officers of the court and
               as advocates for the people to conduct trials in accordance with
               due process and a fair administration of justice and should thus
               refrain from arguments that unnecessarily risk being violative of a
               defendant‟s      fundamental     constitutional    rights,    thereby
               necessitating new trials.

State v. Ward, No. 68A99, slip op. at ___ (quoting State v. Mitchell, 353 N.C. 309, 326-27, 543

S.E.2d 830, 840-41 (2001)); N.C. Gen. Stat. § 8-54 (state forbidden “from making any reference

to or comment on defendant‟s failure to testify” (as cited in State v. McCall, 286 N.C. 472, 486,
                                                    66

212 S.E.2d 132, 141 (1975)). In Ward, this Court ordered a new capital sentencing hearing

based on the trial court‟s failure to intervene ex mero motu to correct the prosecutor‟s improper

commentary on the defendant‟s exercise of his right to remain silent.


       A prosecutor may not avoid these statutory and constitutional duties through stratagem.

Thus, the trial court has a duty to intervene ex mero motu whether the prosecutor presents

forbidden arguments directly, by implication, or even by artfully contending that he is not

presenting expressly forbidden arguments, the substance of which he then specifically identifies

for the jury. State v. Roberts, 243 N.C. 619, 621, 91 S.E.2d 589, 591 (1956) (argument that

prosecutor had not said a word about defendant‟s failure to testify held improper); State v.

Tibbetts, 299 A.2d 883 (Me. 1973) (distinguishing direct, indirect, and implicit commentary on

exercise of right to silence; all held improper).


       New trial is required in defendant‟s case because the same prosecutor who presented

improper argument in Ward violated the same rule during the guilt phase in this capital trial. In

the alternative, the prosecutor‟s violation of rules governing cross-examination and closing

argument during the second phase of these capital proceedings requires a new sentencing

hearing. Defendant addresses these arguments seriatim.


               A.      The prosecutor’s improper guilt-phase argument requires
                       new trial.

       During closing argument in the guilt phase, the state told the jury that defendant was the

only person who could answer questions raised by the state‟s evidence. The prosecutor then

pointed to defendant in the courtroom, told the jury, “Not the first person has come forward” to

testify for the defense, and argued, “that‟s his choice[.]” Tpp. 2792-94, 2799, 2808. (App. 5-9)

In Griffin v. California, the United States Supreme Court ordered a new capital trial for precisely

the same type of argument. 380 U.S. 609, 14 L.Ed.2d 106 (1965). These direct, unambiguous
                                                 67

comments on defendant‟s exercising “his choice” not to “come forward” and testify constitute

reversible error per se. Tp. 2808; Tibbets, supra (direct commentary reversible per se). Even if

the arguments could be construed as ambiguous, ex mero motu intervention was warranted

because “the jury would naturally and necessarily understand” these arguments as favoring an

inference of guilt based on defendant‟s silence. Ward, slip op. at ___ (quoting Mitchell, 353

N.C. at 326, 543 S.E.2d at 840-41).


       The first phase of the state‟s argument focused on defendant‟s sole ability to answer

questions raised by the state‟s evidence. First, the state argued, defendant alone could explain

the location of the knife missing from the cutlery set that was seized from his home. The state

argued, “only Lionel Lewis Rogers can tell you where that knife is.” Tp. 2792-93. (App. 5-6)

The state also argued that “only the defendant can tell you” about his mental state at the time the

offenses were committed against Mrs. Sechler. Tp. 2794. (App. 7) With respect to whether

defendant was responsible for the broken door leading off Mrs. Sechler‟s porch, the state

conceded, “I can‟t tell you” and argued, “But you know who can.” Tp. 2799. (App. 8)


       These arguments impermissibly focused attention on defendant‟s failure to testify in

precisely the same manner found unconstitutional in Griffin v. California. The district attorney

was equally straightforward in pointing to the defendant in the courtroom while saying “Not the

first person” had testified for the defense and arguing, “That‟s his choice, but you don‟t get credit

for it.” Tp. 2808. (App. 9) This argument told jurors that defendant was the “first person” from

whom they had a right to expect testimony and that they had been deprived of it by defendant‟s

own choice.


       The jury could have construed these arguments in no other way than as urging an

impermissible inference of guilt from defendant‟s exercise of his constitutional right to silence.
                                                68

That construction was reinforced by defense counsel‟s elicitation, during cross-examination of a

witness for the state, that defendant had taken a polygraph examination. In response to this

testimony, the state moved for mistrial. Defense counsel argued against the state‟s motion.

Counsel admitted that the polygraph evidence was elicited through his own error and requested a

curative instruction containing that concession. The trial court denied the state‟s motion for

mistrial, and instructed the jury in accordance with the defense request. Tpp. 1794-1804. The

damage had been done, however, and jurors were left to wonder about the results of the

polygraph examination. Unanswered questions about the polygraph results surely fueled the fire

set by the prosecutor‟s improper reference to defendant‟s failure to testify.     The trial court‟s

failure to correct the improper argument warrants new trial. Griffin v. California, supra; see

Ward, supra; State v. Reid, 334 N.C. 551, 434 S.E.2d 193 (1993).


       New trial is also warranted because the prosecutor vouched at length for the veracity of

the state‟s witnesses. The prosecutor also interjected matters not in evidence by stating that these

witnesses were completely free of any bias against defendant or other inducement to testify, but

had


               no axe to grind whatsoever except to come in here and tell you the
               truth. That‟s it. There‟s nothing in it for them. Come in here and
               tell you the truth … with nothing on their minds other than to tell
               you the truth.

Tp. 2813 (App. 10); contrast G.S. 15A-1230(a) (forbidding expression of belief as to witness

veracity, and argument based on extra-record matters).


       New trial is also warranted because the prosecutor argued that jurors should decide the

case based on community revulsion toward crime. This Court has expressly forbidden this

argument. The prosecutor presented it through the stratagem rejected by this Court in State v.

Roberts, 243 N.C. at 621, 91 S.E.2d at 591. In Roberts, the prosecutor argued over objection that
                                                69

the defendant had presented no evidence, and faulted the defendant for failing to present certain

witnesses. The prosecutor then told the jury (without objection) that he had not said anything

about the failure of the defendant himself to take the stand. This Court rejected the stratagem as

one of implausible deniability. The only purpose of such argument, this Court held, was to focus

attention on the very point that the prosecutor denied making. 243 N.C. at 621, 91 S.E.2d at 591.


       The prosecutor in the instant case used exactly the same tactic to incite the jury with local

passion against crime and criminals. The argument unfolded as follows:


               It would be improper, ladies and gentlemen, and I will not do it, to
               try to tell you what this community is sick and tired of. We‟re sick
               and tired of crime, sick and tired of this. And do you know why
               that‟s improper? Because you, you fourteen people, you fourteen
               people, citizens and residents of Halifax County, do you know that
               you are not the ear of Halifax County? You‟re not the ear of this
               county. You‟re not to sit here and listen to what this county is sick
               and tired of. You are not to set the standards for this county be
               listening with your ears. You are, you are today, you are Halifax
               County. You are the conscience of Halifax County and you are the
               voice, you‟re the voice of Halifax County. So don‟t let anybody
               tell you what folks are sick and tired of. You tell us. You tell us
               through your verdicts, ladies and gentlemen[.]

Tpp. 2833 (App. 11).


       The prosecutor was correct on one point. It is reversible error to urge jurors to return

verdicts based on community sentiment. State v. Scott, 314 N.C. 309, 333 S.E.2d 296 (1985)

(ordering new trial). The trial court should have intervened ex mero motu to prevent or cure the

prosecutor‟s pointed invocation of local citizens‟ antipathy toward crime as a basis for returning

guilty verdicts in these cases.   The district attorney recited the substance of the improper

argument in far greater detail than in Roberts. The intentionality of the prosecutor‟s argument is

far more obvious than in Roberts, as is the implausibility of the prosecutor‟s denial. And as in

Roberts and in Scott, such impermissible manipulation of the jury warrants new trial.
                                               70

               B.     The prosecutor engaged in improper cross-examination
                      during defendant’s capital sentencing hearing.

       The district attorney‟s conduct deteriorated markedly during the sentencing phase. He

“drew a bead” on the lone defense witness, forensic psychiatrist Nathan Strahl, M.D. State v.

Jamie Smith, 352 N.C. 531, 560, 532 S.E.2d 773, 792 (2000) (citing prosecutor‟s “remarks

abusing the[] rules” governing proper argument). During cross-examination, the prosecutor

attacked, insulted, badgered, and shouted at Dr. Strahl.      He repeatedly misrepresented Dr.

Strahl‟s testimony.   The prosecutor‟s questions were argumentative, and injected his own

opinions into the case. He elicited irrelevant evidence about Dr. Strahl‟s personal life and about

defendant‟s indigency. A new sentencing hearing is required because the prosecutor overstepped

the bounds of proper cross-examination and violated defendant‟s rights to a fair, reliable capital

sentencing hearing. Sanderson, supra.


       Defendant had statutory as well as constitutional rights to present Dr. Strahl‟s testimony

to the jury. Ake v. Oklahoma, 470 U.S. 68, 84 L.Ed.2d 53 (1985); N.C. Gen. Stat. § 7A-450(b).

Over objection, the prosecutor interrogated Dr. Strahl at length on his “financial arrangements in

this case.” Tpp. 3044-47. Subsequently, the prosecutor elicited and focused attention on the

irrelevant information that Dr. Strahl was “employed by the State of North Carolina through the

Office of Courts.” Tpp. 3049, 3060 (App. 12-13).       Repeated, detailed questions on this point

were “more in the nature of rhetorical assertions [whose] likely effect was unfairly to prejudice

the jury against this witness.” Sanderson, 336 N.C. at 13, 442 S.E.2d at 42.


       Examples include the following interrogation:


               Q.      Did you bill the defendant or the State of North Carolina
               for the first six months of your employment?

               A.     I‟ve not billed anybody for anything at this point.
                                  71

Q.     Well, are you planning on doing it?

A.     Yes, I am.

Q.     For what?

A.      I don‟t follow you, sir. For the same thing you‟re doing
right here. You‟re working to do your job. I‟m doing my job up
here. I don‟t understand the difference.

Q.      How long have you been notified, contacted, involved in
this case?

A.      Okay. I first saw Lionel Rogers on June 14th of 1999 and I
would estimate that I was contacted in May of 1999 to work on the
case. I‟m not sure there‟s anything else to state than that.

Q.     So your billing started in May, you first saw Lionel Rogers
in June?

A.     My billing will start for the contact time I spent on the case
whether it‟s in a group of hours like it is today or it‟s nothing for
two, three months. I‟ll only bill for the time that I spent on the
case.

Q.     And how many hours did you say so far?

A.      Well, I think you remember. I said between twenty and
thirty.

Q.     Which is it?

A.      I don‟t have the exact figure, sir. I don‟t tally that up. I‟ll
tally it up when we‟re all done here. I‟m estimating between
twenty and thirty hours for this case. It‟s been one of the more
rigorous cases to deal with and I‟ve spent more time on it than
most other cases I‟ve had to deal with.

Q.     So what you will bill somebody will be between $3000 and
$4500 so far?

A.     Somewhere in that range I would guess if that‟s how it
works out mathematically. That‟s correct.

Q.     For your work in this case?

A.     That is correct.
                                               72

               Q.      And do you understand, Dr. Strahl, that almost everybody
               in this room has spent more time with this defendant than you
               have?

               A.    I don‟t know that for a fact. If you say so. You‟re making
               something evil out of my charging for my expertise.

                      THE COURT: Excuse me, sir.          Please just answer the
               question, sir.

Tpp. 3072-74 (App. 14-16). The trial court erred in giving its imprimatur to this series of

irrelevant, cumulative, and argumentative questions.     Evidently emboldened, the prosecutor

heightened his personal attack on Dr. Strahl, and used the information about defendant‟s

indigency against him during improper sentencing-phase argument. See infra Issue VII.C.


       Over objection, the prosecutor also delved into Dr. Strahl‟s own personal history:


               Q.     Did you grow up in a home with both your parents?

                      MR. REAVES: Objection, Judge.

                      THE COURT: Overruled.

               A.     I did.

               Q.      So you‟re probably ill equipped in your personal life to
               testify as to how being born to an unwed mother might affect
               someone personally. Wouldn‟t you agree?

Tpp. 3058-59 (App. 17-18). On direct examination, Dr. Strahl consistently referred only to his

professional medical training and experience and not to his private personal life as the basis for

his testimony. The prosecutor‟s questions were irrelevant, argumentative, and injected the

prosecutor‟s personal opinion in a manner calculated to disparage the witness before the jury.

The trial court erred in overruling defendant‟s objection.   Sanderson, 336 N.C. at 11-12, 442

S.E.2d at 40-41.


       The pattern of improper questioning only intensified during the course of the cross-

examination. The prosecutor repeatedly “attempted to distort” Dr. Strahl‟s testimony in a way
                                                 73

expressly disapproved by this Court in Sanderson, id. Examples of these distortions include the

following:


              Q.     Well, what studies have you done to show that being born
              to an unwed mother leads you to murder, burglary, and sex
              offense?

              A.       Firstly, none. Second, I think I answered that question in a
              little different way than you‟re implying. I answered the question
              that I was more concerned not about the issue that it was an unwed
              mother but that he felt rejected through the fact that he had no
              grounding from roots. I think I mentioned that in my direct
              testimony. I did not put heavy emphasis on the single mother issue
              to this Court.

Tp. 3059 (App. 18).


       The prosecutor also shouted at Dr. Strahl while he was on the stand and accused him of

“floundering around”:


              Q.    When did you first interview and interact with Lionel
              Lewis Rogers‟ natural mother?

              A.        I never have, sir.

              Q.        You‟ve never laid eyes on her?

              A.        You don‟t have to yell. No, I‟ve never laid eyes on her.

              Q.        You‟ve never said one word to her?

              A.        I‟ve never said one word to her.

              Q.        And she‟s never said one word to you?

              A.        No sir.

              Q.      But you have come into court under oath and testified about
              his early home life and how she treated him and what he went
              through and you have never even talked to the lady?

              A.     I have never been able to talk to the lady, number one. And
              secondly, there‟s information in this report that we‟re dealing with
              now that deals exactly with that issue. The report indicates that
              she‟s had nine to ten children by nine to ten fathers and has a
                                                 74

                problem with alcohol and great difficulty caring for her own
                natural children. That‟s in the medical report. That‟s substantial
                as far as I‟m concerned.

                Q.     Well, did you think it was important, Dr. Strahl, to go and
                talk with the lady and find out for yourself through just talking
                with her, what kind of person she was, whether or not young
                Lionel was telling the truth? Did it ever occur to you to do that?

                A.     It did occur to me to do that. It‟s been very difficult to deal
                with the family and get them involved in the case the way we
                would like it to happen. It‟s been a very torturous [sic] experience.

                Q.     The way who would like it to happen?

                A.     The way I would like it to happen in terms of cooperation
                with family on all sorts to help me do a better job to provide the
                Court the information that‟s needed.

                Q.     So is that your way of saying, Dr. Strahl, that you‟re kind
                of floundering around in coming to medical opinions when you
                can‟t even talk to the people about which you are giving these
                medical opinions?

                A.      I wouldn‟t call it floundering around. I would say very
                piece of information is an additive and helpful. I feel the
                conclusions I came to are strongly supported in the prior medical
                records, strongly supported in the current issues related to the
                charges that are present and strongly related in every possible way.
                There is full consistency for the diagnosis that I gave and that
                consistency starts back at age nine to eleven.

Tpp. 3060-62 (App. 13, 19-20)


        Continuing his barrage of personal attacks, the prosecutor delved into another wholly

irrelevant area of inquiry and used it to imply, and, later, to argue to the jury that Dr. Strahl was

mentally ill:


                Q.     Now, Dr. Strahl, you have testified in giving your
                Curriculum Vitae that you are licensed to practice medicine in
                Virginia as well as North Carolina?

                A.      I have a license in Virginia as well. I would need to
                reactivate that because it‟s on kind of like a hold pattern since I
                don‟t work in Virginia directly and I don‟t have to pay certain fees
                                               75

              but I can reactivate it any time. I‟m in good standing with the state
              of Virginia.

              Q.     So you are not currently licensed to practice medicine in
              Virginia as you previously testified?

              A.      I think that I am currently licensed to practice in the State
              of Virginia. I only need to send a letter indicating that I do want to
              do so. In my license I have a registration certificate from the State
              of Virginia that I receive every year or two that I pay for every
              year or two.

              …

              Q.      How long have you been practicing medicine in Virginia?

              A.      I have never practiced medicine in Virginia. I think that‟s
              what I‟m trying to tell you. I‟m allowed to, I am able to, I‟m
              registered to but I never have.

              Q.     What was the purpose of telling this jury then that you‟re
              licensed to practice in Virginia, if your license is not current and
              you‟ve never done it?

              A.      Not doing it is different. My license is current. I pay a
              current fee and I have a number on my license that is active. I can
              practice any time I want to practice in the State of Virginia. I do
              not choose to practice in the State of Virginia. I was asked where I
              am licensed and I‟m licensed actively in two states, North Carolina
              and Virginia. Those remain true statements.

              Q.     You can practice anytime you want to in the State of
              Virginia?

               A.     That is correct.

              Q.      Would you define narcissistic for this jury one more time?

              A.      Narcissistic is a statement [sic] that results in an excessive
              level of entitlement over and above what is deserved.

              Q.      Thank you. …


Tpp. 3077-79 (App. 21-23); see infra Issue VII.C.


       The improper cross-examination of Dr. Strahl crossed the line between aggressive

probing of the evidence into unwarranted personal attack. The cross-examination was designed
                                                  76

to belittle the defendant‟s sole witness in the jury‟s eyes. The trial court‟s failure to sustain

objections to irrelevant questions was reversible error. N.C. R. Evid. 401; G.S. 15A-1443(a).

Resentencing is also warranted by the trial court‟s failure to intervene ex mero motu to prevent

and cure questions implicating the indigent defendant‟s equal protection and due process rights

to present expert testimony and to prevent the prosecutor‟s sustained, sarcastic assault on Dr.

Strahl.    Regardless of the standard of review applied, the improper cross-examination of

defendant‟s sole witness requires a new capital sentencing.


          The state cannot prove that questions implicating his constitutional rights were harmless

beyond a reasonable doubt, because, as argued below, the prosecutor cited that information in

closing argument.      Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705 (1967); G.S. 15A-

1443(b). In the alternative, defendant requests prejudicial error review.     State v. Warren, 289

N.C. 551, 553, 223 S.E.2d 317, 319 (1976). Defendant also urges that the improper cross-

examination rendered his capital sentencing hearing fundamentally unfair and the results

unreliable. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (establishing plain

error standard); G.S. 15A-1446(b) (reviewing court may reach errors affecting substantial rights

despite trial waiver). Defendant must receive a new sentencing hearing. Sanderson, supra.


                 C.      The prosecutor engaged in improper argument during
                         defendant’s capital sentencing hearing.

          In closing argument, the prosecutor vilified Dr. Strahl. He compared Dr. Strahl to an

animal, attacked his morals, and argued that he was mentally ill. The prosecutor also used the

irrelevant evidence of defendant‟s indigency and his dependence on the state for payment of his

legal expenses to inflame jurors‟ resentment toward defendant.


          The latter arguments impermissibly appealed to the pecuniary interests of taxpayers in the

jury box. As the Pennsylvania Supreme Court stated decades ago,
                                                 77

               The defendant was on trial for his life and should not have had his
               case prejudiced by intemperate remarks calculated to prejudice the
               jury and warp their judgment by the thought of the expense to the
               [state] which would affect them as taxpayers.

Commonwealth v. Clark, 322 Pa. 321, 325, 185 A.2d 764, 766 (1936) (ordering new capital

trial). Arguments related to defendant‟s indigency and the need for public payment of his legal

expenses violated his rights to equal protection and due process of law. The totality of the

prosecutor‟s argument violated defendant‟s right to a fair and reliable capital sentencing hearing

and warrants a new hearing. U.S. Const. amends. V, VIII, XIV; Caldwell v. Mississippi, 472

U.S. 320, 86 L.Ed.2d 231 (1985); N.C. Const. art. I, §§ 19, 23, 27; Sanderson, supra; Clark,

supra; State v. Muskus, 158 Ohio St. 276, 109 N.E.2d 15 (1952) (argument on indigent

defendant‟s expense to state improper; new trial ordered); State v. Jordan, 80 Ariz. 193, 294 P.2d

677 (1956) (same; ordering new capital trial).


       Defendant joins the growing list of Halifax County capital defendants who have strongly

urged this Court exercise its supervisory authority in order to check this prosecutor‟s

inappropriate pattern of cross-examination and argument. See Ward, supra; State v. Smith, 351

N.C. 251, 524 S.E.2d 28 (2000). The prosecutor initiated his attack on Dr. Strahl by citing

matters outside the record to support a patently false proposition:


               Before you can answer Issue Two yes, before you can get there
               you‟ve got to find some mitigation. You‟ve got to find something
               that reduces this defendant‟s moral culpability for the killing right
               here. If you do on the evidence adduced from Nathan Strahl it will
               be the first time in American jurisprudence that a psychiatrist has
               come into court and testified to a one-man crime wave and gotten
               credit from mitigation.

Tp. 3213 (App. 24) (emphasis added). The prosecutor was wrong to inject any consideration of

extraneous jury deliberations into this capital case. See, e.g., Caldwell v. Mississippi, 472 U.S.

320, 86 L.Ed.2d 231; G.S. 15A-1230(a). Moreover, the notion that no jury in the United States

has ever found mitigating circumstances based on mental health evidence regarding a criminal
                                                78

defendant with a prior history of criminal conduct is nonsensical.         The prosecutor‟s own

experience in Halifax County proves this argument false. Smith, 351 N.C. at 269, 271-73, 524

S.E.2d at 41-43 (reciting defendant‟s lengthy criminal history and addressing testimony of

mental health expert); Id., Rpp. 75-82 (Issues and Recommendation as to Punishment, with

findings in mitigation).


       Like the assistant district attorney in State v. Jamie Smith, the prosecutor in the instant

case also argued in favor of death by “analogizing the field of psychology generally and

psychologists that testify as experts in particular” – and, even more particularly, defendant‟s

mental health expert, Dr. Strahl – “to animals and their habits.” 352 N.C. at 560, 532 S.E.2d at

792. The prosecutor also “disdainfully disparaged” Dr. Strahl‟s “personal motives for testifying,

as well as [his] expertise.” Id. The prosecutor violated the governing statute by communicating

his own belief that Dr. Strahl lied to the jury. He emphasized that the State of North Carolina

would foot the bill for defendant‟s exercising his constitutional right to present evidence through

Dr. Strahl. According to the prosecutor, Dr. Strahl


               [s]pent a half an hour yesterday morning as a courtesy call or
               something, I don‟t know what, of course, it‟ll cost the State of
               North Carolina seventy-five dollars for that half hour, but anyway,
               ….

Tp. 3214 (App. 25).


       The prosecutor followed this remark with repeated references to the “three thousand

dollar check” purportedly coming from the State of North Carolina to pay Dr. Strahl.           The

prosecutor compounded these references as he “disdainfully disparaged” Dr. Strahl‟s personal

motives for testifying.    State v. Jamie Smith, 352 N.C. at 560, 532 S.E.2d at 792. He accused

Dr. Strahl of having “corrupted” and “abuse[d]” his education “for filthy lucre.” He accused Dr.
                                                 79

Strahl of choking on the truth, of croaking like a frog in a pond, and of “trying to sell a bill of

goods” after swearing to testify truthfully on the Bible.


       The personal attack on Dr. Strahl unfolded as follows:


                       Now, ladies and gentlemen, I don‟t mean to degrade, deride
               anybody personally or any profession, but daggone-it when you
               come into this court and you put your hand on that Bible up there
               and you talk about your degrees and where you can practice
               medicine and where you can‟t practice medicine, you better not be
               trying to sell a bill of goods, you better not be looking to pick up
               your three thousand dollar check and stay on that defense witness
               testimony list and keep picking up that little ten percent. You need
               to come in here and get up and tell the truth cause that‟s what you
               deserve. That‟s what you deserve, ladies and gentlemen. And it’s
               a crying shame when education is corrupted for filthy lucre, it’s a
               crying shame when people who’ve got education abuse it. … As
               soon as he gets a little cross examination he wants to say
               somebody‟s evil for talking about what money he‟s making and he
               gets choked up and has to go to the water jug. Well what’s stuck in
               his throat? The truth? It’s been said, ladies and gentlemen, that
               it’s a mighty small frog, it’s a mighty small frog that can’t get a
               croak out of his own pond. … you can pay somebody to say
               anything.

Tpp. 3214-16 (App. 25-27) (emphases added). This improper argument is compounded by the

prosecutor‟s use of the same “implausible deniability” disclaimer rejected by this Court in State

v. Roberts, 243 N.C. at 621, 91 S.E.2d at 591.


       The state also argued that Dr. Strahl was “gone get that check and how he‟s going to cash

it and sleep at night I don‟t know. But he will. … He can say what everybody else did wrong,

what everybody else did right, but he ain‟t done nothing.” Tpp. 3196-97 (App. 28-29). In

addition, the prosecutor argued that Dr. Strahl looked “like a moron” when he testified that

defendant maintained his innocence. Tp. 3215. He argued that because Dr. Strahl “grew up in a

two-parent home” his testimony was “mumbo jumbo.” Tp. 3226 (App. 30). He argued that Dr.

Strahl had a narcissistic personality disorder because he was licensed to practice medicine in
                                                 80

Virginia. Id. By descending to “personal insult,” the prosecutor exceeded “all bounds of

civility, if not propriety.” State v. Jamie Smith., 352 at 561, 532 S.E.2d at 792.


       The prosecutor also belittled Dr. Strahl‟s training and expertise by equating him with

charlatans, gamblers, and carnival performers. The prosecutor also misrepresented the evidence.

This Court has long disapproved such tactics, particularly in capital sentencing proceedings

“where the issue before the jury is whether a human being should live or die and where this

decision involves the exercise of the jury‟s judgment as to how certain aggravating and

mitigating circumstances should be weighed against each other.” Sanderson, 336 N.C. at 8, 442

S.E.2d at 38 (citing U.S. Cont. amend. VIII).


       Just before the prosecutor began his argument, over his objection the trial court ruled that

all of the evidence supported submission of a peremptory instruction on the “mental or emotional

disturbance” mitigating circumstance specified in G.S. 15A-2000(f)(2). Tp. 3164. Despite the

trial court‟s ruling, the prosecutor dismissed this evidence as “hogwash” and argued that

defendant had presented no evidence to support the statutory mitigator:


               … you don‟t need to be running around testifying for any three
               thousand dollars. Play the lottery. Play the lottery if you‟re that
               good. Get on the Psychic Friends Network. Get to reading minds.
               … you show us one smidgen; you show us one speck, one mote,
               one iota, one atom and one molecule of mental and emotional
               disturbance on this defendant‟s part on the 11th of May of 197, or
               for that matter the 13th of April of the year 2000. That is hogwash.
               That‟s what it is. That is pure unmitigated undiluted one hundred
               percent hogwash cause there‟s no evidence of it. None, zip, notta
               [sic]. That‟s the statutory mitigating evidence. But there‟s no
               evidence of it cause the good doctor saying so and picking up a
               check does not make it so.

Tpp. 3217, 3219 (App. 31-33).
                                                81

       The harm from the prosecutor‟s argument is as apparent as its impropriety. Sanderson,

336 N.C. at 16, 442 S.E.2d at 42 (disapproving misrepresentation of (f)(2) evidence as

“hogwash”). The defense presented independent, archival history from multiple sources of

defendant‟s longstanding, serious mental health problems. The jury‟s findings in mitigation

show that one or more jurors found the evidence of defendant‟s mental illnesses to be credible.

Rpp. 191-94. The record also shows that, based on the evidence, one juror believed that the state

failed to make its case for the death penalty. The jury reported an 11-1 deadlock during

sentencing deliberations. See infra Issue XI.


       Apparently unwilling or unable to tackle the independence and reliability of defendant‟s

archival evidence, the prosecutor instead cast this capital sentencing hearing in purely personal

terms as “the rule of law” versus “Nathan Strahl.” Tp. 3235. The record also shows that the

prosecutor succeeded. His barrage of pointed personal attacks on Dr. Strahl diminished the value

of this experienced professional‟s testimony in the eyes of the jury to the point where they

apparently considered his testimony a joke. The trial court should have intervened to prevent

these capital proceedings from deteriorating to such a level.


       After the prosecutor completed his argument, the lead defense attorney stepped up to

present the case in mitigation. When he specifically cited the existence of defendant‟s mental

disorder, the record indicates that one or more jurors responded as if the argument were

laughable. The lead attorney conceded that defendant was culpable but that the jury should not

vote for death because defendant


               has a mental disorder. Now if you want to think that‟s funny,
               that‟s up to you, that‟s up to you, that‟s up to you, and that‟s up to
               you if you want to think that‟s funny. But I don‟t think it is, ladies
               and gentlemen.
                                                82

Tp. 3262. It is unlikely that, absent the prosecutor‟s sustained, improper belittlement of Dr.

Strahl, these jurors would have considered his testimony to be a joke. It is reasonably likely that

the one juror who held out for a life sentence would have been joined by others in the absence of

the prosecutor‟s persistent, unprofessional personal attack on the lone defense witness.

Conversely, those jurors who were persuaded by the prosecutor‟s improper conduct to consider

this expert‟s testimony as a joke likely employed similar arguments to persuade that lone juror

and others to discount the evidence in mitigation sufficiently to vote for death. See supra Issue I

and infra Issue X (citing empirical studies showing disproportionate impact of death-prone jurors

during capital deliberations).


        Defendant must receive a new sentencing hearing regardless of the standard of review

employed. The record does not show that defense counsel objected to the prosecutor‟s improper

argument. Defendant requests that this Court nevertheless review this Issue for harmless error.

Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705 (1967); G.S. 15A-1443(b).                In the

alternative, defendant requests prejudicial error review.   State v. Warren, 289 N.C. 551, 553,

223 S.E.2d 317, 319 (1976). Defendant further alleges that the trial court committed plain error

in failing to intervene ex mero motu to correct and cure the improper argument. The error

rendered defendant‟s capital sentencing hearing fundamentally unfair in violation of his rights to

due process and a fair and reliable capital sentencing hearing. State v. Odom, 307 N.C. 655, 660,

300 S.E.2d 375, 378 (1983) (establishing plain error standard); G.S. 15A-1446(b) (reviewing

court may reach errors affecting substantial rights despite trial waiver).      In the alternative,

Defendant respectfully requests that this Court exercise its discretionary authority under Rule 2

to correct the errors.


        Should this Court rule against Defendant on this Issue on the basis of trial waiver,

Defendant contends that such waiver constituted ineffective assistance of counsel in violation of
                                                       83

Strickland v. Washington, 466 U.S. 668, 689, 80 L.Ed.2d 674 (1984) and State v. Braswell, 312

N.C. 553, 324 S.E.2d 241 (1985); see State v. Fair (No. 506A99, October 5, 2001)

<http://www.aoc.state.nc.us/www/public/sc/opinions/2001/506-99-1.htm>                        at    pp.    19-20

(requiring defendants to raise IAC on direct appeal or risk waiver).


        There can be no strategic reason for waiving a meritorious objection to the improper

argument in a capital sentencing proceeding. Prejudice is established if this Court decides this

Issue against Defendant under a standard lesser than the Chapman-1443(b) standard. Thus,

whether or not the trial court‟s statutory and constitutional errors are preserved, Defendant must

receive a new sentencing hearing.


        VIII. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
              GIVING THE JURY MULTIPLE INSTRUCTIONS ON THE
              AGGRAVATING FACTOR SPECIFIED IN G.S. 15A-2000(E)(5).

                 Assignment of Error No. 53, Rp. 233.
                 Assignment of Error No. 67, Motion to Amend Record on Appeal ¶¶ 1(a), 1(b)(8).

        In Zant v. Stephens, the United States Supreme Court held that capital sentencing statutes,

in order to comport with the demands of due process and the Eighth Amendment, must provide

some means of genuinely narrowing the applicability of the death sentence through, for example,

specification of aggravating factors without proof of which a death sentence may not be

imposed. 462 U.S. 862, 77 L.Ed.2d 235 (1982). North Carolina v. Pearce stands for the more

long-standing principle that the double jeopardy clause of the Fifth Amendment forbids multiple

punishments for the same offense. 395 U.S. 711, 23 L.Ed.2d 656 (1969); N.C. Const. art. I §

19; State v. Cherry, 298 N.C. 86, 113, 257 S.E.2d 551, 567 (1979). 6 Specifically, resentencing is

required when the jury finds duplicative aggravating factors – i.e., one aggravating factor



        6
          Although the Cherry Court stated that it was unnecessary to address the question presented under double
jeopardy analysis, the opinion relies on that analysis by applying the merger rule and by citing cases that were
themselves determined under double jeopardy principles. Id. Consistent with these facts, Cherry and related cases
                                                       84

“plainly comprises” another because both are proved by same evidence. State v. Quesinberry,

319 N.C. 228, 238, 354 S.E.2d 446, 452 (1987).


        This Court has found adequate evidence to support submission of multiple aggravating

factors, see N.C. Gen. Stat. § 15A-2000(d)(2), where the state presented independent,

nonoverlapping proof in support of each factor. In State v. Trull, this Court found no error in the

trial court‟s instructing the jury twice on the aggravating factor specified in N.C. Gen. Stat. §

15A-2000(e)(5) because the evidence supporting each of the instructions was “distinct and

separate.” 349 N.C. 428, 454, 509 S.E.2d 178, 195 (1998), cert. denied, 528 U.S. 835, 145

L.Ed.2d 80 (1999) (quoting State v. Bond, 345 N.C. 1, 34-35, 478 S.E.2d 163, 181 (1996), cert.

denied, 521 U.S. 1244, 138 L.Ed.2d 1022 (1997)). In Trull and Bond, the state presented

separate, distinct evidence that the killings occurred, respectively, during the commission of a

kidnapping and rape, and during the commission of two kidnappings and a robbery. Trull, 349

N.C. at 454, 509 S.E.2d at 195; Bond, 345 N.C. at 35, 478 S.E.2d at 181. In State v. Moseley,

this Court also approved the submission of multiple (e)(5) instructions because the state

presented “distinct and separate evidence” that the defendant committed the two additional

crimes of first degree sex offense and first degree rape against the victim. 338 N.C. 1, 55, 449

S.E.2d 412, 444-45 (1994), cert. denied, 514 U.S. 1091, 131 L.Ed.2d 738 (1995).


        In contrast, in State v. Quesinberry, this Court ordered a capital resentencing hearing on

the basis that the jury had been instructed on the aggravating factors specified in N.C. Gen. Stat.

§ 15A-2000(e)(5)-(6). Specifically, the jury was told that it could find as factors weighing in

favor of a death sentence both that the killing occurred during the commission of a robbery and

that it was committed for pecuniary gain. This Court held the two aggravating factors were

“redundant” and that “one should be regarded as surplusage.” This Court declined to re-weigh



have been generally interpreted as turning on double jeopardy analysis. E.g., State v. Quesinberry, 319 N.C. 228,
                                                       85

the evidence before the sentencing jury and remanded for a new sentencing hearing. 319 N.C. at

239-40, 354 S.E.2d at 453. Capital resentencing hearings were also ordered for duplicative

instructions on the (e)(5) and (e)(6) aggravating factors in State v. Howell, 335 N.C. 457, 439

S.E.2d 116 (1994) (error to instruct on both burglary and pecuniary gain) and State v. Davis, 325

N.C. 607, 386 S.E.2d 418 (1989), cert. denied, 496 U.S. 905, 110 L.Ed.2d 268 (1990) (error to

instruct on both common-law robbery and pecuniary gain).


        Similarly, in State v. Goodman, this Court ordered resentencing because instructions on

the factors specified in G.S. 15A-2000(e)(4) (avoiding lawful arrest or effecting escape) and

(e)(7) (hindering law enforcement) were based on the same evidence. This Court held that the

dual instructions resulted in “unnecessary duplication” and “automatic cumulation of aggravating

circumstances against the defendant.” 298 N.C. 1, 29, 257 S.E.2d 569, 587 (1979). In State v.

Vereen, this Court also found error in duplicative instructions regarding evidence of an attempted

rape. 312 N.C. 499, 324 S.E.2d 250 (1985) (error to instruct on both (e)(5) aggravating factor

based on evidence of burglary or attempted rape and (e)(11) aggravating factor based on assault

and attempted rape).


        Resentencing is required in defendant‟s case because the trial court submitted two

instructions under the aggravating factor specified in N.C. Gen. Stat. § 15A-2000(e)(5) based on

the same evidence. Quesinberry, 319 N.C. at 238, 354 S.E.2d at 452. Defendant objected to the

submission of these duplicate factors based on the insufficiency of the evidence. Tpp. 3133.

The record does not indicate that the trial court expressly ruled on the objection. The jury was

instructed twice on the (e)(5) aggravating factor. Tpp. 3288-90; Rpp. 167-69. Following the

sentencing charge, the trial court invited corrections or “additional matters.” Lead defense

counsel stated, “None from the defendant.” Tp. 3311.


354 S.E.2d 446 (1987); State v. Oliver, 302 N.C. 28, 274 S.E.2d 183 (1981).
                                                86

       The duplicate (e)(5) instructions were reversible error. The first (e)(5) instruction told the

jury to consider evidence that the killing occurred during the commission of a sex offense as a

factor favoring the death penalty. This second instruction told the jury to consider evidence that

the killing occurred during the commission of a burglary as a factor favoring death. Specifically,

the jury was instructed to consider defendant‟s intention to commit the same sex offense

described in the first (e)(5) instruction. In this case, the only evidence of intention to commit a

sex offense at the time of the breaking and entering was the evidence that a sex offense had been

committed after the breaking and entering. Thus, the two (e)(5) instructions were based on

exactly the same evidence.


       The duplicative instructions were provided as follows:


               Number Three: Was this murder committed by the defendant
               while the defendant was engaged in the commission of a sex
               offense?

               A sexual offense is the commission of a sexual act by the
               defendant with the victim by force and against the victim‟s will.

               A sexual act is the penetration by an object into the genital opening
               of a person‟s body.

               If you find from the evidence and beyond a reasonable doubt that
               when the defendant killed the victim the defendant engaged in a
               sexual act as I have defined with the victim and that he did so by
               force or threat of force and that this was sufficient to overcome any
               resistance which the victim might make and that the victim did not
               consent and it was against her will, you will find this aggravating
               circumstance and would so indicate by having your foreperson
               write “Yes” on the form. If you do not so find or have a
               reasonable doubt as to one or more of these things, you will not
               find this aggravating circumstance and will so indicate by having
               your foreperson write “No” in that space.

               Number Four: Was the murder committed while the defendant
               was engaged in the commission of burglary?

               Burglary is the breaking and entering of a dwelling house of
               another without her consent at night with the intent to commit
                                               87

               murder or a sexual offense as I have previously defined these
               terms.

               If you find from the evidence and beyond a reasonable doubt that
               when the defendant killed the victim the defendant broke into and
               entered a dwelling house without the consent of the owner during
               the nighttime and at that time intended to commit murder or a
               sexual offense, you would find this aggravating circumstance and
               would so indicate by having your foreperson write “Yes” in the
               space after this aggravating circumstance on the form. If you do
               not so find or have a reasonable doubt as to one or more of these
               things, you will not find this aggravating circumstance and will so
               indicate by having your foreperson write “No” in that space.

Tpp. 3288-90; Rpp. 167-69.


       The jury was never instructed that it could not use the same evidence to find both (e)(5)

aggravating factors.   State v. Gay, 334 N.C. 467, 495, 434 S.E.2d 840, 856 (1993) (jury

instructions should “ensure that jurors will not use the same evidence to find more than one

aggravating circumstance”); N.C.P.I. (Crim.) 150.10; Motion to Amend Record on Appeal ¶

(1)(b)(8). Under the Eighth and Fourteenth Amendments in capital cases, “accurate sentencing

information is an indispensable prerequisite to a reasoned determination of whether a defendant

shall live or die.” Simmons v. South Carolina, 512 U.S. 154, 172-73, 129 L.Ed.2d 133 (1994)

(Souter and Stevens, JJ, concurring, quoting Gregg v. Georgia, 428 U.S. 153, 190, 49 L.Ed.2d

859 (1976)).   Both due process and the heightened need for reliability in capital sentencing

proceedings mandate accurate instructions when there is a reasonable likelihood of juror

confusion. Simmons, 52 U.S. at 156, 172-25, 129 L.Ed.2d 133 (7 of 9 Justices applying due

process requirement); 52 U.S. at 173, 129 L.Ed.2d 133 (Souter and Stevens, JJ, applying due

process and Eighth Amendment analyses); Caldwell v. Mississippi, 472 U.S. 320, 86 L.Ed.2d

231 (1985).


       Without being told that they could not base duplicate (e)(5) findings on the same

evidence, the jury unanimously did so. Rp. 191. As noted in the Statement of Facts and in Issue
                                                 88

XI below, the jury reached an 11-1 deadlock during sentencing deliberations, with one juror

unconvinced that the state had made its case for death. The trial court‟s error in submitting two

(e)(5) instructions based on the same evidence requires a new sentencing hearing regardless of

the standard of review employed.


       The record shows that defense counsel objected to the duplicate (e)(5) instructions but

did not request the necessary corrective instruction. Defendant asks this Court to review this

Issue for harmless error. Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705 (1967); G.S. 15A-

1443(b). Because the state cannot prove beyond a reasonable doubt that the jury did not

impermissibly rest both (e)(5) findings on the same evidence and that the evaluation of

sentencing evidence would have remained the same absent the redundant (e)(5) instruction,

defendant must receive a new sentencing hearing. U.S. Const. Amends. VI, VIII, XIV; Jackson

v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560 (1979) (citing due process clause of Fourteenth

Amendment); Ford v. Wainwright, 477 U.S. 399, 411, 91 L.Ed.2d 335, 347 (1986) (requiring

“heightened standards of reliability” in all capital proceedings); N.C. Const. Art. I, §§ 19, 27;

State v. Earnhardt, 307 N.C. 62, 66 n.1, 296 S.E.2d 649, 652 n.1 (1982) (Jackson standard

identical to that imposed by N.C.G.S. § 15A-1227); State v. Williams, 317 N.C. 474, 482-83, 346

S.E.2d 405, 409-411 (1986) (Williams II) (no evidence to support aggravating factor; death

sentence vacated); State v. Williams, 304 N.C. 394, 425, 284 S.E.2d 437, 456 (1981), cert.

denied, 456 U.S. 932, 72 L.Ed.2d 450 (1982) (Williams I) (same); N.C.G.S. § 15A-2000(d)(2).


       In the alternative, defendant requests prejudicial error review. State v. Warren, 289 N.C.

551, 553, 223 S.E.2d 317, 319 (1976). Defendant further alleges that it was plain error to submit

duplicate (e)(5) instructions on the basis of the same evidence and to fail to instruct the jury that

it could not find both factors based on the same evidence. These errors rendered defendant‟s

capital sentencing hearing fundamentally unfair in violation of his rights to due process and a fair
                                                  89

and reliable capital sentencing hearing. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378

(1983) (establishing plain error standard); G.S. 15A-1446(b) (reviewing court may reach errors

affecting substantial rights despite trial waiver).


        In the alternative, Defendant respectfully requests that this Court exercise its

discretionary authority under Rule 2 to correct the errors.      Should this Court rule against

Defendant on this Issue on the basis of trial waiver, Defendant contends that such waiver

constituted ineffective assistance of counsel in violation of Strickland v. Washington, 466 U.S.

668, 689, 80 L.Ed.2d 674 (1984) and State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985);

see State v. Fair (No. 506A99, October 5, 2001) <http://www.aoc.state.nc.us/www/public/

sc/opinions/2001/506-99-1.htm>       at pp. 19-20 (requiring defendants to raise IAC on direct

appeal or risk waiver).


        There can be no strategic reason for waiving a meritorious objection to the erroneous

submission of duplicate aggravating factors or for failing to request necessary corrective jury

instructions. Prejudice is established if this Court decides this Issue against Defendant under a

standard lesser than the Chapman-1443(b) standard. Thus, whether or not the trial court‟s

statutory and constitutional errors are preserved, Defendant must receive a new sentencing

hearing.


        IX.     THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
                FAILING TO INSTRUCT THE JURY ON THE MITIGATING
                CIRCUMSTANCES SPECIFIED IN G.S. 15A-2000(F)(6)-(7).

                Assignment of Error No. 65, Motion to Amend Record on Appeal ¶¶ 1(a)-(b).
                Assignment of Error No. 66, Motion to Amend Record on Appeal ¶¶ 1(a)-(b).

        Capital sentencing instructions must encompass mitigating circumstances supported by

the evidence in order for jurors to give the constitutionally required individual consideration of

the defendant‟s background and character, and the nature of the offense. U.S. Const. amends. V,
                                                90

VIII, XIV; Eddings v. Oklahoma, 455 U.S. 104, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S.

586, 605, 57 L.Ed.2d 973 (1978; N.C. Const. art. I, §§ 19, 24, 27; State v. Wilson, 322 N.C. 117,

367 S.E.2d 589 (1988).       North Carolina‟s General Assembly has specified that a capital

sentencing jury must consider as mitigating evidence any impairment of a defendant‟s capacity

to appreciate the criminality of his conduct or conform his conduct to the requirements of the

law. The governing law also specifies that the defendant‟s age at the time of the offense must be

considered as a mitigating circumstance. Substantial evidence of either circumstance requires

submission of the instruction to the jury ex mero motu if the defendant does not request it. N.C.

Gen. Stat. §§ 15A-2000(b), 15A-2000(f)(6)-(7); State v. Zuniga, 348 N.C. 214, 498 S.E.2d 611

(1998) (reversible error in failure to instruct on (f)(7) statutory mitigator); State v. Stokes, 308

N.C. 634, 656, 304 S.E.2d 184, 198 (1983) (same, for failure to instruct on (f)(6) mitigator).


       Defense counsel did not request an instruction on either the (f)(6) or the (f)(7) mitigating

circumstance.    Rpp. 147-48.     The jury received peremptory instructions on the statutory

mitigating circumstance that defendant was under the influence of a mental or emotional

disturbance at the time of the offense on the basis of the psychological disorders testified to by

Dr. Strahl, as well as on separate nonstatutory mitigating circumstances based on the same

evidence. These disorders included defendant‟s anxiety disorder, his substance abuse, and his

narcissistic, schizoid, and antisocial personality disorders. The jury was also instructed on the

“catchall” statutory mitigating circumstance. One or more jurors found the (f)(2) statutory

mitigating circumstance to exist, along with fourteen of sixteen nonstatutory mitigating

circumstances offered and the “catchall” circumstance. The nonstatutory findings were based on

evidence that defendant was identified early in life as having dull normal intelligence with

declining academic achievement, behavioral problems, inability to control his aggressive

behavior, and a need for professional and specialized psychological help. One or more jurors

also found the existence of specific nonstatutory mitigating circumstances that defendant had
                                               91

been diagnosed as testified to by Dr. Strahl. G.S. 15A-2000(f)(2), (9); Rpp. 172-73, 180-81,

191-94.


       The jury also found the existence of five aggravating factors: two prior violent felonies,

the commission of two additional felonies at the time of the killing, and the especially heinous,

atrocious, or cruel nature of the killing. Rpp. 190-91; G.S. 15A-2000(e)(3), (5), (9). Despite

these findings in aggravation, the jury reported an 11-1 deadlock during sentencing deliberations.

See Issue XI, infra.


       Thus, the state cannot prove that the trial court‟s omission of the (f)(6) and (f)(7)

instructions was harmless beyond a reasonable doubt. G.S. 15A-1443(b); State v. Quick, 337

N.C. 359, 363-64, 446 S.E.2d 535, 538 (1994). The trial court concluded that substantial,

unrebutted evidence of defendant‟s mental illnesses at the time of the offense required a

peremptory instruction on the (f)(2) mitigating circumstance. The jury also received peremptory

instructions on all of the nonstatutory mitigating circumstances related to defendant‟s history of

mental illness and disability.     The same evidence required both general and peremptory

instructions on the (f)(6) and (f)(7) mitigating circumstances. Zuniga, supra; Stokes, supra; see

also State v. Johnson, 298 N.C. 47, 257 S.E.2d 597 (1979) (failure to instruct accurately on

(f)(6) mitigator requires resentencing.


       Moreover, the record shows that one or more jurors found Dr. Strahl‟s testimony to be

credible and to establish the existence and mitigating value of defendant‟s longstanding history

of mental illness. It is reasonably likely that the same credible evidence would have grounded

findings in defendant‟s favor on the (f)(6) and (f)(7) circumstances. The jury would have been

required to give weight to these (f)(6) and (f)(7) findings. This was not required with respect to

the parallel nonstatutory mitigating circumstances.     This crucial distinction requires a new

sentencing hearing in defendant‟s case. Quick, supra (instructions on nonstatutory mitigators do
                                                92

not cure failure to instruct on parallel statutory mitigator); Zuniga, 348 N.C. at 218, 498 N.C. at

613 (same).


       The state cannot prove beyond a reasonable doubt that the additional weight favoring a

mitigated sentence would not have tipped the balance toward life. It is reasonably likely that the

additional factors weighing for life would have led one or more jurors to join the single juror

who was unpersuaded by the state‟s case. It is equally likely that the additional weight in

mitigation would have counterbalanced arguments presented by the majority after the jury

reached deadlock, and resulted in a life sentence. Because any doubts regarding submission of

statutory mitigating circumstances to the jury are resolved in defendant‟s favor, he must receive

a new sentencing hearing. State v. Payne, 328 N.C. 377, 407-408, 402 S.E.2d 582, 600 (1991)

(resentencing required for instructional error on (f)(6) mitigator); Stokes, 308 N.C. at 656, 304

S.E.2d at 198 (same); Zuniga, supra; Quick, supra; Wilson, supra.


       Evidence warranting the (f)(6) instruction includes testimony and documentation

showing the existence on May 11, 1997 of defendant‟s diagnosed anxiety disorder, his substance

abuse problems, and his narcissistic, schizoid, and antisocial personality disorders. In addition,

one or more jurors found that defendant‟s intelligence was in the dull normal range. Childhood

tests resulted in a diagnosis of borderline mental retardation. Defense Exh. 2, 3, 5; Tpp. 3029-

33.   Failure to instruct on the (f)(6) mitigating circumstance based on this evidence requires a

new sentencing hearing. Stokes, 308 N.C. at 655-66, 304 S.E.2d at 198.


       Evidence of defendant‟s personality disorders, standing alone, warranted the (f)(6)

instruction. The defense presented substantial, unrebutted evidence that defendant‟s mental

illnesses impaired his capacity to conform his conduct to the law when the offenses against Ms.

Sechler occurred. By definition, the personality disorders testified to by Dr. Strahl constitute

significant functional impairments.
                                                 93

       The American Psychiatric Association defines mental illness or disorder as a disabling

“manifestation of a behavioral, psychological, or biological dysfunction.” American Psychiatric

Association, Diagnostic and Statistical Manual of Mental Disorders xxxi (4th Ed., Text Revision

2000). As a specific type of mental illness, a personality disorder is


               an enduring pattern of inner experience and behavior that deviates
               markedly from the expectations of the individual‟s culture, is
               pervasive and inflexible, has an onset in adolescence or early
               adulthood, is stable over time, and leads to distress or impairment.

Id. at 685 (emphasis added). It is prerequisite to any diagnosis of personality disorder that the

individual manifest traits that are “inflexible and maladaptive and cause significant functional

impairment.” Id. at 686 (emphasis added).


       The central criterion for a diagnosis of antisocial personality disorder, therefore, is the

“significant functional impairment” in the ability to “conform to social norms with respect to

lawful behavior.” Additional criteria include impulsivity, irritability, and aggression. Id. at 686,

702. Thus, this disorder, standing alone, satisfies the definition of the mitigating circumstance

specified by the General Assembly in G.S. 15A-2000(f)(6).            Additional factors warranting

submission of the (f)(6) instruction included defendant‟s narcissistic personality disorder. The

DSM-IV defines this disorder as “a pervasive pattern of grandiosity, need for admiration, and

lack of empathy.” Id. at 714. The schizoid personality disorder is marked by “detachment from

social relationships,” social isolation, and limited expression of emotion. Id. at 694.


       Dr. Strahl testified that as a result of defendant‟s antisocial personality disorder he was “a

person who tends to disregard the rules of society in terms of the law.” Tp. 3005. As early as

the age of eleven, defendant was “having difficulty with impulse control” and his adoptive

parents sought professional help based on their own difficulties in “trying to control his

behavior.” At that age, defendant already had a documented “history of fighting, of truancy, of
                                               94

stealing, of lying, dabbling with sex … with cigarette smoking and perhaps marijuana also[.]”

Based on this history, defendant had already been described as “incorrigible” and “unable to

control his aggressive behavior.” Tp. 3007, 3012, 3023, 3100-3105. According to Dr. Strahl,

this documented history established that as a child defendant already “clearly did have a need for

mental health treatment.” Tp. 3010.


       Dr. Strahl also testified that defendant‟s personality disorders were partly rooted in his

genetic makeup. Specifically, Dr. Strahl cited research showing that decreased levels of the

neurotransmitter serotonin led to heightened aggression and inability to control behavior. Tpp.

3038-40. On cross-examination, the prosecutor elicited additional information supporting the

(f)(6) instruction. This information included evidence that defendant used both marijuana and

alcohol on the day that the offenses against Mrs. Sechler were committed. Tpp. 3088-89. The

prosecutor also elicited that the diagnoses testified to were not only “strongly supported by the

prior medical records” but also “strongly supported in the current issues related to the charges

that are present and strongly related in every possible way.” Tp. 3062.      The prosecutor also

elicited that defendant‟s “mental health problems” were manifest as early as the age of nine and

that over the years his “maladaptive” behavior developed into a “solid personality disorder.”

Tpp. 3055, 3074-75, 3098. On re-cross examination, the prosecutor elicited Dr. Strahl‟s opinion

that defendant‟s “personality disorder coupled with his abuse of alcohol and marijuana” were

“significant factors” in his behavior on the day that the offenses against Mrs. Sechler were

committed. Tp. 3121.


       In addition, the first page of Defense Exhibit 3 contains references to psychological tests

performed upon defendant that revealed “significant brain injury signs.” This document is a

report from the Roanoke-Chowan Mental Health Center.           Dr. Strahl testified that he first

received this report shortly before he took the stand to testify during the sentencing hearing.
                                                        95

Tpp. 3007, 3019. This report also states under “Early History” that as a baby, defendant “would

turn purple in color” and was examined by physicians as a result. “No reasons could be found

for this condition,” which “occurred off and on up until 1972,” or when defendant was eight

years old. These episodes occurred “real often” and at “any time.” They were accompanied by

leg cramps, blackouts, nosebleeds, and vomiting blood, which was described as “dark black”

blood. Def. Exh. 3; Tpp. 3256-59.7


        The trial court found that defendant‟s substantial, detailed, and unrebutted mental health

evidence warranted peremptory instructions not only on the (f)(2) statutory mitigating

circumstance, but on separate nonstatutory mitigating circumstances as well. The same evidence

required an (f)(6) instruction on defendant‟s impaired capacity to control his conduct and

conform it to the requirements of law on May 11, 1997. The trial court‟s failure to provide the

instruction requires a new sentencing hearing. Quick, supra; Stokes, supra.


        The same evidence also warranted an (f)(7) instruction, and requires the same result.

Defendant was 33 years old at the time of his arrest. Rp. 2. Chronological age is not dispositive

on the question whether the (f)(7) mitigating circumstance is required in a given case. Instead,

this Court considers evidence of intellectual and psychological disabilities and their impairment

of a defendant‟s ability to be a functional member of society. On these points, the record

contains substantial, unrebutted evidence of defendant‟s immaturity. Consequently, he was

entitled to general and peremptory instructions on this mitigating circumstance as well. The trial

court‟s failure to provide these instructions was reversible error. Zuniga, supra; State v. Holden,

338 N.C. 394, 450 S.E.2d 878 (1994).




        7
            Regarding defense counsel‟s failure to elicit this information on direct or redirect examination of Dr.
Strahl, see infra Issue XII.
                                                96

       X.      THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
               DENYING DEFENDANT’S REQUEST FOR INSTRUCTIONS ON
               MITIGATING CIRCUMSTANCES.

               Assignment of Error No. 7, Rp. 218.
               Assignment of Error No. 8, Rp. 218.
               Assignment of Error No. 10, Rp. 219.
               Assignment of Error No. 50, Rpp. 232-33.

       Under the Eighth and Fourteenth Amendments in capital cases, “accurate sentencing

information is an indispensable prerequisite to a reasoned determination of whether a defendant

shall live or die.” Simmons v. South Carolina, 512 U.S. 154, 172-73, 129 L.Ed.2d 133 (1994)

(Souter and Stevens, JJ, concurring, quoting Gregg v. Georgia, 428 U.S. 153, 190, 49 L.Ed.2d

859 (1976)).    Both due process and the heightened need for reliability in capital sentencing

proceedings mandate accurate instructions when there is a reasonable likelihood of juror

confusion. Simmons, 52 U.S. at 156, 172-25, 129 L.Ed.2d 133 (7 of 9 Justices applying due

process requirement); 52 U.S. at 173, 129 L.Ed.2d 133 (Souter and Stevens, JJ, applying due

process and Eighth Amendment analyses); Caldwell v. Mississippi, 472 U.S. 320, 86 L.Ed.2d

231 (1985). It is a violation of due process and reversible error per se to deny a requested

instruction that is fundamental to the defense case and correctly states the law. United States v.

Escobar De Bright, 742 F.2d 1196, 1201-1202 (9th Cir. 1984).


       Before trial, defendant moved to prohibit death qualification of the jury, to bifurcate the

trial and sentencing proceedings, and for individual voir dire. Defendant cited numerous studies

showing the prejudicial effects of death qualification in general and group qualification in

particular. Rpp. 34-45. The trial court denied these motions. April 19, 1999 Motions Hearing

Tp. 52; Tp. 114.


       Defendant also submitted the following written instruction and asked that it be

incorporated into instructions on the law governing capital sentencing to be given to prospective

jurors on voir dire: “It is acceptable for jurors to have different opinions about the death penalty
                                                         97

and to have different views about what circumstances call for the death penalty. You are never

required to return a sentence of death in any case. [OR you are never required to give a

particular sentence.]” Rpp. 15, 48 (emphasis added).8


         At the close of the sentencing evidence, Defendant requested that prospective jurors

receive the following general instruction on mitigating circumstances:


                  The mitigating circumstances which I have read for your
                  consideration are factors that you should take into account s
                  reasons for deciding to impose life imprisonment without parole.
                  You should pay careful attention to each of those factors. Any one
                  of them, standing alone, may be sufficient to support a decision
                  that life imprisonment is the appropriate punishment for Lionel
                  Rogers. However, you should not limit your consideration of
                  mitigating circumstances to specific mitigating circumstances
                  mentioned. You may also consider any other circumstance relating
                  to the case or to Lionel Rogers whether or not they it was listed by
                  the Court on its verdict sheet or argued by the attorneys as reasons
                  for imposing a sentence of life imprisonment without parole.

Rp. 149 (emphasis added).


         The state did not object to either of these requested instructions. The trial court denied

both requests. Tpp. 118-19, 3177. The italicized instructions were never communicated to the

jury at any point in these capital proceedings. The trial court‟s denial of defendant‟s motions9

and failure to instruct the jury as requested was reversible error. The omitted instructions stated

the law correctly and would have prevented juror confusion. The jury‟s 11-1 deadlock in

sentencing deliberations raises the reasonable likelihood that the juror who was unconvinced that

the state had proved its case for death would have remained firm in her evaluation of the




         8
             Defendant recognizes that this Court addressed a similar instruction in State v. Meyer, 353 N.C. 92, 540
S.E.2d 1 (2000). Defendant respectfully contends that the instruction requested here is distinguished in that it
accurately states the law and, in the alternative, to the extent that Meyer disapproves of such an accurate instruction
it is, for the reasons presented in this Issue, incorrect and should be overruled.
                                                        98

evidence had she received the requested instructions. Consequently, the state cannot prove their

omission harmless beyond a reasonable doubt and defendant must receive a new sentencing

hearing. G.S. 15A-1443(b); Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705 (1967).


                          1.       The omitted instructions accurately stated federal
                                   constitutional law requiring capital juries to provide a
                                   “reasoned moral response” to the evidence, and
                                   forbidding the exclusion of jurors’ individual moral
                                   evaluations from the deliberation process.

        The Eighth Amendment requires that a capital sentencing decision must be a “reasoned

moral response” to the evidence. Penry v. Lynaugh, 492 U.S. 302, 328, 106 L.Ed.2d 256 (1989);

Carol S. Steiker & Jordan M. Steiker, “Sober Second Thoughts: Reflection on Two Decades of

Constitutional Regulation of Capital Punishment,” 109 Harv. L. Rev. 355, 412-14, 433-35 (1995)

(capital sentencing decision is “necessarily” and “irreducibly” moral).


        The constitutionally mandated, moral function of capital deliberations further implicates

the Sixth and Fourteenth Amendment rights to an impartial jury and to due process of the law.

As the United States Supreme Court stated,


                 one of the most important functions any jury can perform in
                 [capital sentencing] is to maintain the link between contemporary
                 community values and the penal system – a link without which the
                 determination of punishment could hardly reflect “the evolving
                 standards of decency that mark the progress of a maturing society.”

Witherspoon v. Illinois, 391 U.S. 510, 520 n.15, 20 L.Ed.2d 776 (1968) (quoting Trop v. Dulles,

356 U.S. 86, 101, 2 L.Ed.2d 30 (1958)).




        9
            Defendant recognizes that this Court has approved denial of similar motions. He urges the Court to
reconsider those holdings in light of the new empirical evidence cited in this Issue regarding the effect of death-
qualification on capital jurors‟ comprehension and application of the law.
                                                 99

       The Court further addressed the appropriate role of personal moral judgments within

capital deliberations in Adams v. Texas, 448 U.S. 38, 65 L.Ed.2d 581 (1981). As a preliminary

matter, the Court stated the “establishe[d] … general proposition” that


               a juror may not be challenged for cause based on his views about
               capital punishment unless those views would prevent or
               substantially impair the performance of his duties as a juror in
               accordance with his instructions and his oath.

448 U.S. at 45, 65 L.Ed.2d 581. The Court then elaborated on this standard by noting that, as a

matter of constitutional law, capital deliberations cannot be “an exact science, and the jurors ...

unavoidably exercise a range of judgment and discretion while remaining true to their

instructions and their oaths."   448 U.S. at 46, 65 L.Ed.2d 581. Specifically, the Court held, a

defendant‟s rights to due process and to an impartial capital jury mandate that “the prospects of

the death penalty may affect what [jurors‟] honest judgment of the facts will be or what they may

deem to be a reasonable doubt. Such assessments and judgments by jurors are inherent in the

jury system[.]”   448 U.S. at 50, 65 L.Ed.2d 581; State v. Brogden, 334 N.C. 39, 42-43, 430

S.E.2d 905, 907 (1993) (same).


       Because capital jurors‟ exercise of moral responsibility has a constitutional mandate, trial

courts must avoid and correct any tendency to reduce it. Caldwell v. Mississippi, 472 U.S. 320,

328, 86 L.Ed.2d 231 (1985); Joseph L. Hoffman, “Where‟s the Buck? – Juror Misperception of

Sentencing Responsibility in Death Penalty Cases,” 70 Ind. L. J. 1137 (1995) (presenting

empirical evidence that jurors seek to avoid moral engagement; urging affirmative instructions

emphasizing moral aspect of juror responsibility); Robert Weisberg, “Deregulating Death,”

1983 Sup. Ct. Rev. 305, 376 (warning against instructions or arguments to jurors “that their

apparently painful choice is no choice at all – that the law is making it for them”).
                                                    100

          It also follows that a potential juror “who opposes the death penalty, no less than one who

favors it, can make the discretionary judgment entrusted to him by the State and thus obey the

oath he takes as a juror.” Witherspoon, 391 U.S. at 520, 20 L.Ed.2d 776. This is so because the

deliberative model is the sine qua non of moral judgment. The exercise of moral reason occurs

in a give-and-take process between rational individuals. Individual moral judgments necessarily

inform the process, “not as mere statements of taste” or emotion, but as rationally justifiable

propositions offered to persuade other participants in the deliberations. 10


          Thus, the appropriate focus of the death-qualifying inquiry is whether jurors' "beliefs

about capital punishment would lead them to ignore the law or violate their oaths" by refusing to

consider evidence and arguments in favor of life or death. Adams, 448 U.S. at 50, 65 L.Ed.2d

581. With respect to their oaths, North Carolina jurors are required to swear or affirm that they

will “truthfully and without prejudice or partiality try all issues in criminal or civil actions that

come before [them] and render true verdicts according to the evidence.” N.C. Gen. Stat. § 9-14

(1999).


          North Carolina's capital sentencing statute, in turn, imposes two duties upon jurors. First,

they "must consider any aggravating ... or mitigating circumstance or circumstances" provided

under the statute "which may be supported by the evidence." N.C. Gen. Stat. § 15A-2000(b)

(1997 Second,


           [a]fter hearing the evidence, argument of counsel, and instructions of the court, the
    jury shall deliberate and render a sentence recommendation to the court, based upon the
    following matters:

           (1) Whether any sufficient aggravating circumstance or circumstances as enumerated
    in subsection (e) exist;


          10
            Seyla Benhabib, “Communicative Ethics and Current Controversies in Practical Philosophy,” in Seyla
Benhabib & Fred Dallmayr, eds., The Communicative Ethics Controversy 330, 355-56 (M.I.T. Press 1990)
(contrasting rational and irrational moral judgments).
                                                  101

               (2) Whether any sufficient mitigating circumstance or circumstances as enumerated
       in subsection (f), which outweigh the aggravating circumstance or circumstances found,
       exist; and

              (3) Based on these considerations, whether the defendant should be sentenced to
       death or to imprisonment in the State's prison for life.

Id.; cf. Rpp. 15-16. Although the aggravating factors are expressly limited by statute, N.C. Gen.

Stat. § 15A-2000(e), the jury is free to consider a broad range of mitigating factors, including

those specified by statute, N.C. Gen. Stat. § 15A-2000(f), nonstatutory mitigating factors

submitted by the defense, and "[a]ny other circumstance arising from the evidence which the jury

deems to have mitigating value." N.C. Gen. Stat. § 15A-2000(f)(9).


          Thus, neither juror oaths nor the capital sentencing law of North Carolina requires jurors

to recommend death in any given case. Consistent with the constitutional mandates of Penry,

Adams, and Witherspoon, the law requires jurors to exercise discretion, to weigh the evidence,

and to arrive at a “reasoned moral response” to the question whether the defendant should live or

die.     Under the same constitutional rulings, jurors‟ personal moral principles and evaluations

may not be excised from the deliberative process. To the contrary, they are “inherent” in that

process and may properly inform jurors‟ ultimate judgments as to the facts of the case and

whether the prosecution has proved its case beyond a reasonable doubt. Defendant‟s proposed

instructions were correct statements of law, and the trial court committed reversible error in

failing to provide them to the jury.


                         2.      Because North Carolina jurors misperceive the
                                 governing law, and because the prosecutor in this case
                                 capitalized upon those misperceptions, the federal
                                 Constitution mandated accurate instruction on the law.

          As noted above in Issue I, social science research indicates that capital jurors – including

those in North Carolina -- deliberate with serious misunderstandings of this governing law and

their corresponding duties.      For example, jurors mistakenly believe that the law favors death
                                                102

verdicts over life imprisonment. As many as half of capital jurors deliberating in a particular case

do so under the mistaken belief that death is “the only acceptable punishment” for murder.

William J. Bowers, Marla Sandys, & Benjamin D. Steiner, “Foreclosed Impartiality in Capital

Sentencing: Jurors‟ Predispositions, Guilt-Trial Experience, and Premature Decision Making,”

83 Cornell L. Rev. 1476, 1499 (1998); William S. Geimer, “Law and Reality in the Capital

Penalty Trial,” 18 N.Y.U. Rev. L. & Soc. Change 273, 284-88 (1990).


       In the North Carolina study, “roughly one-fourth of [capital] jurors felt that death was

mandatory when it was not.” James Luginbuhl and Julia Howe, “Discretion in Capital

Sentencing Instructions:    Guided or Misguided?,” 70 Ind. L. J. 1161, 1173 (1995). More

specifically, over half of the jurors in the North Carolina study believed that death was

mandatory once they were convinced of the defendant‟s future dangerousness. Seventy percent

of the jurors believed the evidence did prove this fact. Id. at 1174.


       In addition, sixty-three percent of capital jurors in the North Carolina study “incorrectly

believed that the law required them to impose a death sentence if the evidence proved that the

defendant‟s conduct was especially heinous, atrocious, or cruel.”         70 Ind. L. J. at 1174.

Moreover, almost ninety percent of the North Carolina jurors believed that this aggravating

factor had been established in the case upon which they had served. Id. The state focused on

the (e)(9) aggravating factor in closing argument and the jury found it to exist. Tpp. 3189-91,

3209-10; Rp. 191.


       An additional risk of arbitrary capital sentencing results from jurors‟ mistaken belief that

a commitment given during voir dire to consider death as a possible punishment estops later

incorporation of moral reservations about capital punishment into sentencing deliberations.

Hoffman, 70 Ind. L. J. at 1156. This evidence shows the prejudice resulting from collective

death-qualification, as occurred in defendant‟s case. As a result of these numerous, fundamental
                                              103

misperceptions and the prosecutor‟s capitalizing upon them, defendant was “on trial for his life

at the punishment stage [with] one foot in the grave.” Theodore Eisenberg & Martin T. Wells,

“Deadly Confusion: Juror Instruction in Capital Cases,” 79 Cornell L. Rev. 1, 14 (1993).

Moreover, these misperceptions demonstrate a more fundamental empirical problem in capital

deliberations: jurors are “predisposed to use almost any available information to downplay their

[personal moral] responsibility for the death sentencing decision.” Hoffman, 70 Ind. L. J. at

1138.


        The jury‟s shift from an 11-1 deadlock to a recommendation of death raises the

reasonable likelihood that these factors came into play in defendant‟s case. The empirical

studies show the need for curative, “strong, unequivocal and affirmative instructions” on the

constitutionally required, moral nature of the jurors‟ capital deliberations. Hoffman, 70 Ind. L.

J. at 1138. This is precisely what the omitted portion of defendant‟s requested instructions

would have provided.      This excluded language would have informed jurors of the law

established under Adams and Witherspoon, by noting the moral aspect of capital deliberations

and the fact that the law does not require one sentencing outcome or another.


        Moreover, capital deliberations are carefully circumscribed in terms of substance and

procedure. Defendant‟s requested instructions would have informed jurors of these rules and

their duty to abide by them.    Jurors were also instructed at the guilt phase on their duties to

“consult with one another, and to deliberate with a view to reaching an agreement, if it can be

done without violence to individual judgment.”      Rp. 141. At the sentencing phase, they were

repeatedly instructed on the need for unanimity.       Rpp. 164, 170, 183-84, 186-87. These

governing rules of law make it highly unlikely that deliberations could be affected significantly

by irrational forms of personal morality such as “mere statements of taste” or emotion. See

supra n.9.
                                                104

       Defendant‟s requested instructions would have focused jurors‟ attention on the substance

of the capital deliberation process, highlighting requirements imposed on one hand by state

statute and on the other by the state and federal constitutions. The instructions‟ focus on the

Adams rule would have emphasized to potential jurors that, in exercising their statutory grant of

discretion, the governing law does not require that they shed any principled concern about the

death penalty at the jury room door. With the benefit of these instructions, jurors could have

understood that, under the Constitution, their concerns about the death penalty could legitimately

affect "their honest judgment of the facts ... or what they deem to be a reasonable doubt."

Adams, 448 U.S. at 50, 65 L.Ed.2d 581.


       Instead of informing jurors of the controlling statutory and constitutional law, the trial

court provided the pattern pretrial instruction for capital cases. E.g., Tpp. 128-29; N.C. Patt. Jur.

Inst. (Crim.) 106.10. The pattern instruction did not correct any of intrinsic juror misconceptions

about the capital sentencing process. It did not communicate the basic Adams-Witherspoon rules

governing those deliberations. Specifically, it did not express the necessary moral function of

the capital jury.   To the contrary, the pattern instruction was completely silent about the

constitutionally-mandated substance and procedure of capital sentencing deliberations. Jurors

were told only that at some point they might be called upon to condemn defendant to death – but

in the meantime, not to think about it.


       Moreover, far from confusing jurors, the proposed instructions provide a constitutionally-

mandated corrective to juror misperceptions on this precise issue. As noted above, social science

research shows that North Carolina‟s capital jurors are already badly confused about their duties.

Each of these points of confusion work against the capital defendant. Luginbuhl & Howe, 70

Ind. L. J. at 1176, Table 4 (summarizing juror misperceptions and likely effect on capital

deliberations) (App. 13).     Specifically, jurors mistakenly believe that death sentences are
                                                 105

mandatory.     Under the governing law, the capital sentencing decision must be a product of

guided discretion and “reasoned moral judgment.”           Jurors mistakenly seek to avoid moral

engagement during capital deliberations. Under the Constitution, moral evaluation and jurors‟

moral responsibility are prerequisites to a fair and reliable capital sentence.


       The Eighth and Fourteenth Amendments mandate correct instructions to address these

crucial misperceptions.    Consequently, the trial court‟s denial of defendant‟s requests was

constitutional error. Simmons, supra; Caldwell, supra. Moreover, “[a]rguments of [defense]

counsel cannot substitute for instructions by the court.” Taylor v. Kentucky, 436 U.S. 478, 486,

56 L.Ed.2d 468 (1978).        Should this Court construe Defendant‟s constitutional arguments

waived, however, new trial is also required on the alternative grounds that the error was

prejudicial, State v. Warren, 289 N.C. 551, 553, 223 S.E.2d 317, 319 (1976), or on the grounds

that the manifest injustice of the trial court‟s ruling casts the reliability of these capital

proceedings into doubt, constituting plain error, State v. Odom, 307 N.C. 655, 660, 300 S.E.2d

375, 378 (1983), or warranting this Court‟s intervention under Rule 2 of the North Carolina

Rules of Appellate Procedure.


       Defendant‟s proposed instruction would have insulated jurors against the misimpression

they were under a duty to return guilty verdicts and a death sentence. Defendant must receive a

new sentencing hearing.


       XI.     REVERSIBLE ERROR OCCURRED WHEN THE TRIAL COURT
               FAILED TO INSTRUCT THE JURY AS REQUESTED WHEN THE
               FOREMAN REPORTED AN 11-1 DEADLOCK AS TO THE
               SENTENCING RECOMMENDATION, AND FAILED TO ENSURE
               THAT THE JURY’S SENTENCING DEADLOCK WAS NOT
               BROKEN AS A RESULT OF IMPROPER INFLUENCES.

               Assignment of Error No. 59, Rp. 235.
               Assignment of Error No. 60, Rp. 235.
               Assignment of Error No. 62, Rp. 236.
               Assignment of Error No. 63, Rp. 236.
                                                106

                 Assignment of Error No. 64, Rpp. 236-37.

       After receiving instructions in the sentencing phase, the jury began deliberating at 10:40

a.m. At 11:45 a.m., the jury requested and received a 15-minute break. Deliberations resumed at

12:05 p.m. At 12:45 p.m., the trial court announced that it intended to interrupt the deliberations

in order to pass out lunch order forms to the jury. At 12:50 p.m., the jury was brought into the

courtroom. The bailiff stated that the jury had a question for the trial court, and that the foreman

wanted to address the court. After the foreman identified himself, the trial court instructed him

to submit the question in writing. The trial court did not ask whether the question was already in

writing or otherwise allow the foreman to submit the question at that time. Tpp. 1313-20.


       The trial court‟s first priority at this point should have been to elicit and address the

question that arose from deliberations on whether defendant should live or die. Instead, the trial

court put the matter off in order to provide the jury with detailed instruction on completing their

lunch order forms. The trial court took the time to note the presence on the menu of “side

item[s] like a salad or whatever and a cookie.” The trial court then ordered the jury to stop

deliberating, to return to the jury room, and to fill out their lunch orders as instructed. The trial

court instructed the jury that after the lunch orders were collected “you can resume your

deliberations.” At 12:52 p.m., the jury returned to the jury room. Tpp. 3320-21. The record

does not show thereafter that the lunch orders were collected or that the jury officially resumed

deliberations.


       After the jury returned to the jury room, the bailiff told the trial court that the foreman

had already written out the question. The question was, “Your Honor, the jury is eleven to one

in favor of the death penalty, therefore, we‟re at a standstill, please advise us what to do.” The

trial court‟s first priority at this point should have been to address the jury‟s question. Instead,

the trial court stated that it was “not going to do anything at this point, just I‟ve got
                                                107

communication from them and I‟ve told them to continue their deliberations and that‟s all I

intend to do at this point.” At 12:55 p.m., the trial court ordered a recess “until lunch arrives or

we hear something from the jury.”


       At 1:15 p.m., court reconvened in the jury‟s absence. The trial court asked Deputy

Sheriff Hux to reconstruct what occurred during the recess. Deputy Hux stated that while being

taken into the courtroom vestibule, defendant had resisted turning over an ink pen, had head-

butted an officer, and was “taken to the floor and handcuffed.”            The trial court ordered

defendant handcuffed behind his back with the additional restraint of a waist chain. The trial

court denied defendant‟s request to be heard. Tpp. 3321-25.


       The trial court then stated that “Mr. Puckett, the bailiff, brought me a second written

communication from the jury moments ago while this event was apparently transpiring.” The

second note read, “Your Honor, the situation has been resolved. Foreperson.” The trial court

ordered a recess at 1:20 p.m. The record does not reflect the jury‟s activities during this time.

At 2:05 p.m., the trial court announced that the jury had reached a sentence recommendation. At

2:10 p.m., the jury returned to the courtroom and reported a unanimous recommendation of

death. Tpp. 2325-36.


       These facts ground two assignments of error. First, the trial court erred by failing to

instruct the jury, as requested, on how to handle the 11-1 deadlock.                  Second, with

communication from the jury indicating that the deadlock was broken during the altercation

between defendant and court officials, the trial court erred by failing to ensure through inquiry of

the jury that the altercation itself did not improperly influence deliberations and contribute to the

recommendation of death. Considered separately or jointly, these errors inject uncertainty into

the sentencing verdict and require a new sentencing hearing.
                                               108

       As argued above in Issue X and incorporated herein by reference, the Eighth and

Fourteenth Amendments require accurate sentencing instructions to dispel the risk of arbitrary or

capricious decisionmaking in capital cases, which recent empirical studies have shown to be real

and extremely serious. See also Carter v. Kentucky, 450 U.S. 288, 67 L.Ed.2d 641 (1981) (citing

empirical studies warranting accurate instructions). The United States Supreme Court has also

held that “when a jury makes explicit its difficulties a trial judge should clear them away with

complete accuracy.” Bollenbach v. United States, 326 U.S. 607, 612-13, 90 L.Ed. 350 (1946).

In this case, the trial judge was made aware that a lone minority juror believed the state had not

made its case for death. See Brasfield v. United States, 272 U.S. 448, 71 L.Ed. 345 (1926) (trial

court's knowledge of numerical division may warrant reversal). The foreman reported that

deliberations were “at a standstill” and specifically requested additional instruction. The trial

court erroneously stated that he had “told them to continue their deliberations.” The trial court

had told the jury to complete their lunch orders. The jury was also told to await collection of the

lunch orders before officially resuming deliberations. The record does not show either that the

lunch order forms were collected or that the jury‟s resolution of the 11-1 deadlock occurred

during formal deliberations.


       N.C. Gen. Stat. § 15A-1235(b)-(c) contains the answers to the jury‟s question. The trial

court should have provided this instruction instead of focusing attention on trivial matters

involving the lunch menu. Defendant was prejudiced because the lone juror was not reminded of

key duties that are heightened in capital decisionmaking. These include the duties to deliberate

and agree without doing “violence to [his] individual judgment” and to “decide the case for

himself,” and the coordinate duty not to “surrender his honest conviction as to the weight or

effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose

of returning a verdict.” G.S. 15A-1235(b)(1), (2), (4).    There is a reasonable probability that

renewed instruction would have led the lone juror to maintain his view that the balance of
                                               109

aggravating and mitigating circumstances favored life, even after re-examining his views in

accordance with subsection (3).


       There is also a reasonable possibility that the jury‟s deliberations were infected by the

nearby ruckus in the courtroom vestibule between defendant and court officials. The fact that the

deadlock was broken as that altercation “was transpiring” indicates a causal link between the two

events. The heightened concern for reliability in capital sentencing decisions, and the specific

mandate that capital deliberations remain focused on the factors narrowing the jury‟s discretion

under both constitutional and statutory mandate create in this case a “substantial reason to fear

that the jury [became] aware of improper and prejudicial matters.” State v. Barts, 316 N.C. 666,

683, 343 S.E.2d 828, 839 (1986), overruled on other grounds, State v. Vandiver, 321 N.C. 570,

364 S.E.2d 373 (1988). Consequently, the trial court had a duty to “question the jury as to

whether such exposure has occurred and, if so whether the exposure was prejudicial.” Barts, 316

N.C. at 683, 343 S.E.2d at 839. The United States Supreme Court mandates similar inquiry

when there is a risk that jury deliberations have been tainted by extraneous influences. Remmer

v. United States, 350 U.S. 377, 100 L. 435 (1956).


       The trial court‟s failure to instruct the jury upon request and to make sufficient inquiry to

ensure that the deadlock was not broken as a result of improper influences requires new

sentencing in defendant‟s case regardless of the standard of review applied. Defendant contends

that the above-cited constitutional authorities governing capital deliberations require that the

state prove the errors harmless beyond a reasonable doubt. The presence of significant findings

in mitigation and the existence of the jury deadlock prevent the state from carrying its burden of

proof. G.S. 15A-1443(b); Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705 (1967).


       Should this Court construe defendant‟s arguments waived, however, resentencing is also

required on the alternative grounds that the errors were prejudicial, State v. Warren, 289 N.C.
                                                110

551, 553, 223 S.E.2d 317, 319 (1976), or on the grounds that the manifest injustice of the errors

casts the reliability of these capital proceedings into doubt, constituting plain error, State v.

Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983), or warranting this Court‟s intervention

under Rule 2 of the North Carolina Rules of Appellate Procedure. G.S. 15A-1446(b) (reviewing

court may reach errors affecting substantial rights despite trial waiver).


       Should this Court rule against defendant on this Issue on the basis of trial waiver,

defendant contends that such waiver constituted ineffective assistance of counsel in violation of

Strickland v. Washington, 466 U.S. 668, 689, 80 L.Ed.2d 674 (1984) and State v. Braswell, 312

N.C. 553, 324 S.E.2d 241 (1985); see State v. Fair (No. 506A99, October 5, 2001)

<http://www.aoc.state.nc.us/www/public/sc/opinions/2001/506-99-1.htm>           at   pp.   19-20

(requiring defendants to raise IAC on direct appeal or risk waiver).


       There can be no strategic reason for failing to ensure through appropriate instruction and

inquiry that a capital sentencing verdict is rendered in accordance with the law and free of

improper influences. Prejudice is established if this Court decides this Issue against defendant

under a standard lesser than the Chapman-1443(b) standard. Chapman v. California, 386 U.S.

18, 17 L.Ed.2d 705 (1967). Thus, whether or not the trial court‟s statutory and constitutional

error is preserved, defendant must receive a new sentencing hearing.


                                     ADDITIONAL ISSUES

       XII.    THE STATE CANNOT RAISE A PROCEDURAL BAR IN THE
               FUTURE TO CLAIMS THAT CANNOT BE FULLY AND FAIRLY
               LITIGATED ON DIRECT REVIEW BECAUSE THEY REQUIRE
               INVESTIGATION AND PRESENTATION OF EXTRA-RECORD
               EVIDENCE.

               Assignment of Error No. 25, Rp. 224.
               Assignment of Error No. 46, Rp. 231.
                                                 111

          The facts of this case indicate areas in which investigation and extra-record evidence may

give rise to future claims for relief. The Record on Appeal lacks elements essential to successful

litigation of these potential future claims at this time. In light of McCarver v. Lee, 221 F.3d 583

(4th Cir. 2000), defendant respectfully asks this Court to rule that the presence in the record of

facts that may give rise to the possible future claims listed below does not prejudice defendant‟s

right to a full and fair opportunity to litigate such claims in the future. Defendant cannot

determine whether these facts will lead to justiciable claims unless and until he obtains the

investigative and expert resources available under N.C. Gen. Stat.§§ 7A-451, 15A-1411 et seq.

(1999), including the appointment of two post-conviction attorneys.          These possible future

claims can be fully developed only through post-conviction proceedings, should this Court deny

all bases for relief on direct appeal. State v. Vickers, 306 N.C. 90, 95, 291 S.E.2d 599, 603

(1982).


          Defendant respectfully requests, in light of McCarver, a ruling that he cannot be

procedurally barred at any future time for his inability to litigate these potential claims fully and

fairly on direct appeal. In the alternative, defendant moves this Court to stay this appeal and to

order the appointment of two post-conviction attorneys to investigate and develop the extra-

record facts necessary to pursue such claims through a Motion for Appropriate Relief pending

appeal. N.C. Gen. Stat.§§ 7A-451, 15A-1411 et seq. (1999); N.C. R. App. Proc. 2, 29(b), 37(a);

see State v. Fair      (No. 506A99, October 5, 2001), <http://www.aoc.state.nc.us/www/public

/sc/opinions/2001/506-99-1.htm> at pp. 19-20 (“defendant necessarily must raise an IAC claim

at the earliest opportunity” or may be held to have “waive[d] that claim”; “under section 7A-451,

the defendant may obtain appellate [sic] counsel „to represent the defendant in preparing, filing,

and litigating a motion for appropriate relief‟” pending appeal; “Whether defendant is in a

position to litigate his IAC claim [on direct appeal] is a determination for this Court on direct

appeal”).
                                               112

               A.      On direct appeal, Defendant cannot fully and fairly litigate
                       possible claims involving discovery of F.B.I. forensic
                       testing.

       As noted in the Statement of Facts, the T-shirt from which DNA samples were extracted

was submitted twice to the F.B.I. for forensic testing. The second submission involved a new,

more powerful type of DNA analysis. Tp. 2376. Discovery filed by the state indicates that this

analysis confirmed that Mrs. Sechler‟s DNA profile matched a bloodstain on the shirt. The

probability of a random false match increased to one in six hundred fifty billion in the white

population. With respect to identifying defendant‟s DNA, however, swabbings from the T-shirt

collar, underarm, and upper back contained DNA from both a male and a female. Under the

new, more powerful analysis, the DNA typing results on these mixed samples were

“inconclusive” or not obtained. Rpp. 101-102. Neither the state nor the defense presented this

information to the jury.


       The record does not establish whether trial counsel had a strategic reason for failing to

bring the second discovery report to the jury‟s attention. Obviously, the second report was more

incriminating than the first with respect to linking the T-shirt to Ms. Sechler. On the other hand,

to a reader untrained in recombinant genetics, an “inconclusive” result with respect to

defendant‟s DNA appears to be material exculpatory evidence that could have benefited him at

trial. If that reading is correct, then defense counsel‟s failure to introduce the evidence to the

jury may constitute ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668,

689, 80 L.Ed.2d 674 (1984); State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985).


       It is also apparent that the data underlying the “inconclusive” result may have meanings

not obvious to the lay reader. Those meanings may be more inculpatory than exculpatory, and

provide an explanation for trial counsel‟s failure to present this information to the jury.

Defendant cannot rebut the Strickland presumption of sound trial strategy or show prejudice
                                                113

from any omission by counsel without thorough investigation, including examination of relevant

files, interviews with counsel and any trial experts, and independent expert analysis of the

discovery documents and underlying exhibits.


       For the foregoing reasons, Defendant is not in a position on direct appeal to allege facts

relating to these discovery documents sufficient to ground a claim of ineffective assistance of

counsel or trial error. Defendant respectfully requests that this Court so rule. State v. Fair, No.

506A99 (October 5, 2001) <http://www.aoc.state.nc.us/www/public/sc/opinions/2001/506-99-

1.htm> at pp. 19-20 (“Whether defendant is in a position to litigate his IAC claim at this time is

a determination for this Court on direct appeal.”).


               B.      On direct appeal, defendant cannot fully and fairly litigate
                       possible claims involving evidence indicating that he
                       suffered a brain injury as a young child.

       As noted in the Statement of Facts, Dr. Strahl testified that he received Defendant‟s

Sentencing Exhibit 3, the mental health report from the community health center, two or three

days prior to testifying.   He also testified that he agreed with aspects of a psychological

evaluation prepared by Claudia Coleman, Ph.D., in 1999.        Specifically, Dr. Strahl repeatedly

testified that he found no evidence of brain damage and that his finding was corroborated by

prior reports, including that of Dr. Coleman. Tpp. 3019, 3086-87, 3092-93, 3096.


       As noted above in Issue IX, however, the first page of Defense Exhibit 3 contains

references to psychological tests, performed upon defendant in childhood, which revealed

“significant brain injury signs.” This document is a report from the Roanoke-Chowan Mental

Health Center. The facsimile recording of the date and time at the top of this exhibit states, “4-

10-00:21:13; R-C- HUMAN SERVICES: 252 352 8457”. This indicates that the report was sent

at 9:13 p.m. on the evening of Monday, April 10, 2000. This was the same day that the jury
                                                 114

returned its guilty verdict. Tp. 2897, 2926-27. Dr. Strahl took the stand on Wednesday morning,

April 12. Tpp. 2954, 2996.


       This report also states under “Early History” that as a baby, defendant “would turn purple

in color” and was examined by physicians as a result. “No reasons could be found for this

condition,” which “occurred off and on up until 1972,” or when defendant was eight years old.

This episodes occurred “real often” and at “any time.” They were accompanied by leg cramps,

blackouts, nosebleeds, and vomiting blood, which was described as “dark black” blood. The

lead defense attorney used this information in jury argument but it was not elicited from Dr.

Strahl, the lone defense witness. Def. Exh. 3; Tpp. 3256-59.


       During the sentencing charge conference, lead counsel explained to the trial court that the

defense had had no knowledge of the existence of the mental health report until the 11th hour.

Specifically, counsel told the court,


                Let me give you a little bit of our dilemma, Judge, why we‟re kind
                of grappling with this thing because I think it needs more directive
                and we‟re kind of grappling with a delicate point here. Yeah,
                we‟ve had this case three years and we‟ve had an investigator and
                a mitigating expert who is one of the best in the state and she‟s dug
                and dug and dug, and throughout her digging she could not get any
                information or cooperation from this family. They would not give
                up this information. On Monday evening when we left this
                courthouse we went to talk about the sentence phase, in that
                conversation inadvertently it came to our attention that he had been
                taken to mental health in Ahoskie, North Carolina at some time. I
                got on the phone and got up with the Director and they went to the
                microfilm and found that report Monday afternoon, that‟s why the
                doctor was talking about he hadn‟t seen it, nobody knew it existed,
                we didn‟t know it, we had no way of knowing it because it had
                been shielded from us, we found it, it told us a lot of things that we
                thought might be out there but we didn‟t know, but it confirmed a
                lot of things.

Tpp. 3142-43.
                                                 115

       It was the second chair attorney who examined Dr. Strahl and elicited the contents of

Defense Exhibit 3. At no point during direct or redirect examination was the evidence indicating

the existence of a possible brain injury elicited from Dr. Strahl. This is so despite the second

chair attorney‟s eliciting numerous other highly specific details from this report on redirect

examination. Tpp. 3100-3106, 3109-11, 3121-22. Following that examination and the close of

all the sentencing evidence, lead counsel made his foregoing statements to the trial court and his

related argument to the jury.


       Based on this record, it is impossible to determine whether counsel‟s failure to elicit the

evidence of possible brain injury was a strategic choice or mere inadvertence. On one hand, it is

possible that Dr. Strahl was made aware of the information and was unable on that basis to

confirm a diagnosis or dispute other reports that excluded brain injury as a possible source of

defendant‟s mental and behavioral disorders. On the other hand, it is possible that defense

counsel failed to bring the information to Dr. Strahl‟s attention, that Dr. Strahl missed it, and that

incorporation of that information into his evaluation would have altered his testimony on this

crucial point. If the latter is true, the inadvertent omission would ground a claim for ineffective

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 689, 80 L.Ed.2d 674 (1984);

State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985).


       Defendant cannot rebut the Strickland presumption of sound trial strategy or show

prejudice from any omission by counsel without thorough investigation, including examination

of relevant files, interviews with counsel and any experts consulted at trial, and independent

expert analysis of the mental health report and other mental health evidence adduced at trial.

For the foregoing reasons, Defendant is not in a position on direct appeal to allege facts relating

to evidence in the mental health report sufficient to ground a claim of ineffective assistance of

counsel or trial error. Defendant respectfully requests that this Court so rule. State v. Fair, No.
                                                116

506A99 (October 5, 2001) <http://www.aoc.state.nc.us/www/public /sc/opinions/2001/506-99-

1.htm> at pp. 19-20 (“Whether defendant is in a position to litigate his IAC claim at this time is

a determination for this Court on direct appeal.”).


       XIII. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
             ENTERING JUDGMENT AND SENTENCE ON THE CHARGES
             OF FIRST DEGREE MURDER WHERE THE INDICTMENT WAS
             INSUFFICIENT TO VEST JURISDICTION OVER THAT
             CHARGE.

               Assignment of Error No. 1, Rp. 216.
               Assignment of Error No. 2, Rp. 216.


       Before trial, Defendant moved to dismiss the murder indictment and strike the death

penalty on constitutional grounds. Rpp. 18-23. The motions were denied. April 19, 1999

Motions Hearing Tpp. 20, 63. The denial of these motions was constitutional error, requiring

new trial on all charges. Apprendi v. New Jersey, 530 U.S. 446, 147 L.Ed.2d 435 (2000); Jones v.

United States, 526 U.S. 227, 143 L.Ed.2d 311 (1999); Skinner v. Oklahoma, 316 U.S. 535, 86

L.Ed. 1655 (1942).

       Defendant‟s first-degree murder conviction and death sentence must be vacated because

the indictment failed to charge all elements of first-degree murder or to allege matters in

aggravation.   Thus, Defendant‟s conviction and death sentence are not supported by the

indictment and violate the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution and

Article I, §§ 19, 22, and 23 of the N.C. Constitution. Apprendi, 530 U.S. at ___, 147 L.Ed.2d at

446 (Fourteenth Amendment‟s incorporation of Fifth and Sixth Amendments requires that all

elements of the offense and facts that increase the maximum penalty for a crime “must be

charged in the indictment, submitted to a jury and proven . . . beyond a reasonable doubt.”)

(quoting Jones, 526 U.S. at 243 n.6, 143 L.Ed.2d at 319, 326 n.6 (emphasis added)); Id. at ___,

147 L.Ed.2d at 477 (“No Member of this Court questions the proposition that a State must charge
                                                 117

in the indictment and prove at trial beyond a reasonable doubt the actual elements of the

offense.”) (O‟Connor, J., dissenting).


       Defendant's murder indictment alleged that Defendant "unlawfully, willfully and

feloniously did of malice aforethought kill and murder Hazel Sechler." Rp. 2. The indictment

alleges only the elements of second degree murder. It omits allegations of either premeditation

and deliberation or felony murder, which are essential elements of first degree murder. State v.

Lowe, 295 N.C. 596, 247 S.E.2d 878 (1978); N.C.G.S. §§ 14-17, 15-144.


       This indictment violated Defendant‟s rights to due process and equal protection of the

law under the Fourteenth Amendment to the United States Constitution. Apprendi, 530 U.S. at

___, 147 L.Ed.2d at 446; Skinner v. Oklahoma, 316 U.S. 535, 86 L.Ed. 1655 (1942). Moreover,

because under North Carolina law the trial court lacked jurisdiction to enter judgment on any

charge more serious than second degree murder, the error is unwaivable. State v. Wallace, 351

N.C. 481, 528 S.E.2d 326, cert. denied, __ U.S. ___, 148 L.Ed.2d 498 (2000). Defendant‟s

convictions and sentences are void. See State v. Sturdivant, 304 N.C. 293, 308, 283 S.E.2d 719,

729 (1981) (failure to allege all essential elements “may be corrected upon appellate review even

though no . . . objection . . . was made in the trial division”); State v. Hare, 243 N.C. 262, 264, 90

S.E.2d 550, 552 (1955) (same).


       The right at issue in the instant case -- the right of a criminal defendant to be informed of

the elements of the charge against him, including matters that enhance sentencing              --   is

enshrined not once, but twice in the due process clause of the Fourteenth Amendment. First,

"[n]o principle of procedural due process is more clearly established than [the requirement of]

notice of the specific charges" against a defendant. Cole v. Arkansas, 333 U.S. 196, 201, 92

L.Ed. 644, 647 (1948); Hodgson v. Vermont, 168 U.S. 262, 42 L.Ed. 461 (1897) (charging

instrument must satisfy defendant's right to notice of charges against him). Second, the due
                                                118

process clause incorporates the "fundamental" Sixth Amendment right of every criminal

defendant to "be informed of the nature and cause of the accusation" against him. U.S. Const.

Amend. VI; Herring v. New York, 422 U.S. 853, 856-57 & n.7, 45 L.Ed.2d 593, 597 & n.7

(1975).


          The short-form indictment filed against Defendant failed to provide the constitutionally

required notice of the elements of the charges against him or of matters in aggravation.

Moreover, Defendant's right to equal protection of the law was violated by the state's excluding

him, as a member of the class of persons accused of first degree murder, from the notice

protections of N.C.G.S. § 15A-924. This exclusion is carved out by N.C.G.S. § 15-144, which

allows first degree murder indictments to omit essential elements of the offense. Lowe, 295 N.C.

at 602, 247 S.E.2d at 882 (indictment for first degree murder need allege neither premeditation

and deliberation nor elements of felony murder).


          This statutory scheme discriminates on its face. It creates two classes among those

accused of felonies in North Carolina and strips one class of the full due process protections

afforded the other. Such discrimination violates Defendant's rights to equal protection and due

process of the law under both the Fourteenth Amendment to the United States Constitution and

Article I, § 19 of the North Carolina Constitution. Romer v. Evans, 517 U.S. 620, 134 L.Ed.2d

855 (1996); Leandro v. State, 346 N.C. 336, 353, 488 S.E.2d 249, 258 (1997).


          As argued above, the right of an accused to notice of all the elements of the charge

against him is a "fundamental" right under the Constitution. Cole, 333 U.S. at 201, 92 L.Ed. at

647; Herring, 422 U.S. at 856-57 & n.7, 45 L.Ed.2d at 597 & n.7. A statutory scheme that

discriminates on its face and impinges fundamental constitutional rights, such as the one

challenged here, is subject to strict scrutiny under equal protection analysis. Skinner, 316 U.S.

535, 86 L.Ed. 1655; Phelps v. Phelps, 337 N.C. 344, 446 S.E.2d 17 (1994). Under this most
                                                119

stringent standard of review, a statute is unconstitutional unless the state proves it necessary to

achieve a compelling state interest. Romer, 517 U.S. at 625, 134 L.Ed.2d at 861-62.


       The state cannot carry its burden. The state cannot even meet the most deferential

standard of review by showing that the statutory scheme challenged here "bears a rational

relationship to some legitimate end." Romer, 517 U.S. at 632, 134 L.Ed.2d at 865. It is arbitrary

and capricious to eliminate fundamental constitutional protections for a small minority of those

accused of felonious conduct in North Carolina. It is even more irrational to eliminate those

protections for those accused of the most serious charges -- and therefore subject to the ultimate

penalties -- available under North Carolina law.


       This irrationality is thrown into sharp light by this Court's decisions in State v. Whiteside,

325 N.C. 389, 383 S.E.2d 911 (1989), and State v. Squire, 292 N.C. 494, 506, 234 S.E.2d 563,

570, cert. denied sub. nom. Brown v. North Carolina, 434 U.S. 998, 54 L.Ed.2d 493 (1977). In

these cases, this Court held that the defendants were not entitled to jury instructions on lesser

charges because the short-form murder indictment failed to allege the elements of any lesser

charges. This Court‟s refusal in Whiteside and Squire to expand the scope of a trial court's

jurisdiction beyond the terms of the short-form indictment cannot be squared with the expansion

of that jurisdiction allowed in Lowe and related cases. Thus, the discrimination alleged here

offends basic principles of both equal protection and due process. M.L.B. v. S.L.J., 519 U.S. 102,

104, 136 L.Ed.2d 473, 490 (1996) (“[d]ue process and equal protection principles converge” in

assessing arbitrary and capricious state action); Church v. State, 40 N.C. App. 429. 253 S.E.2d

473 (1979), aff'd, 299 N.C. 399, 263 S.E.2d 726 (1980).


       As the United States Supreme Court noted in Romer, such an arbitrary classification lacks

any rational justification, and can bear no "necessary" relation to any interest, much less any

"compelling" interest that the state might hold. The Romer Court considered an amendment to
                                               120

the Colorado state Constitution which, like the statutory scheme at issue here, simultaneously

created two distinct classes and stripped one class of legal protections afforded the other. The

Court held that such a "status-based enactment," which "nullifies specific legal protections for

[the] targeted class," creates the "inevitable inference that the disadvantage imposed is born of

animosity toward the class of persons affected" and fails the rational-basis test. Romer, 517 U.S.

at 635, 134 L.Ed.2d at 864, 867-68.


       Neither a bill of particulars nor a Rule 24 hearing could have cured the indictments‟ fatal

flaws: by specifying only the elements of second degree murder and failing to allege matters in

aggravation, the indictment limited the trial court's jurisdiction to entering judgment on that

offense, and renders void the first degree murder judgment and death sentence against

Defendant. Whiteside, 325 N.C. 389, 383 S.E.2d 911; State v. Banks, 263 N.C. 784, 140 S.E.2d

318 (1965) (bill of particulars cannot cure indictment's jurisdictional defect); Hare, 243 N.C. at

264, 90 S.E.2d at 552 ("An indictment will not support a conviction for an offense more serious

than that charged"; judgment vacated for lack of jurisdiction); State v. Neville, 108 N.C. App.

330, 423 S.E.2d 496 (1992) (same).


       A state court judgment entered without jurisdiction violates both the Fourteenth

Amendment and the most fundamental "provision[s] of the supreme law" from which that

Amendment derives. Scott v. McNeal, 154 U.S. 34, 46, 38 L.Ed. 896, 901 (1894) ("No judgment

of a court is due process of law, if rendered without jurisdiction"); see also Burnham v. Superior

Court of California, 495 U.S. 604, 608, 109 L.Ed.2d 631, 638 (1990) ("The proposition that the

judgment of a court lacking jurisdiction is void traces back to the English Year Books").


       The first degree murder judgment, conviction, and sentence entered against Defendant

are void for lack of jurisdiction and were entered in violation of U.S. Const. Amends. V, VI and

XIV, N.C. Const. Art. I, §§ 19 and 23, and N.C.G.S. § 15A-924(a)(5). The error is structural;
                                                121

Defendant must receive a new trial. Arizona v. Fulminante, 499 U.S. 279, 309, 113 L.Ed.2d 302,

331 (1991) ("structural defects in the constitution of the trial mechanism ... defy analysis by

'harmless error' standards"); id., 499 U.S. at 294-295, 113 L.Ed.2d at 321-22 (collecting cases);

Scott, 154 U.S. at 51, 38 L.Ed. at 903, (vacating judgment).


       Defendant respectfully draws the Court‟s attention to the clear holding of Apprendi that

any fact that increases the maximum penalty for a crime beyond that which could be imposed

upon “the verdict alone” triggers the Jones rule. 530 U.S. at ___, 147 L.Ed.2d at 450, 455.

North Carolina law does not allow the state to execute persons charged with first degree murder

on the basis of “the verdict alone.” “The verdict alone” allows imposition of life imprisonment

without parole and nothing more. G.S. §§ 14-17, 15A-2000.             Consequently, the factors in

aggravation specified in G.S. § 15A-2000(e) must, like all of the elements of first degree

murder, be specified in the indictment. The convictions and sentences in this case are void for

lack of jurisdiction. The defendant must receive a new trial.


       Defendant recognizes that these issues have been decided against him in State v. Braxton,

352 N.C. 158, 531 S.E.2d 428 (2000). The defendant respectfully requests that the Court

reconsider its opinion, and preserves this issue in the event of further review. See Engle v. Isaac,

456 U.S. 107, 71 L.Ed.2d 783 (1982).


       XIV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
            GIVING THE JURY MULTIPLE INSTRUCTIONS ON THE
            AGGRAVATING FACTOR SPECIFIED IN G.S. 15A-2000(E)(3).

               Assignment of Error No. 52, Rp. 233.


       Defendant recognizes that this issue has been decided against him in State v. Moseley,

338 N.C. 1, 449 S.E.2d 412 (1994). Defendant respectfully requests that the Court reconsider
                                                 122

that decision, and preserves this issue in the event of further review. Rpp. 165-67, 190-96; see

Engle v. Isaac, 456 U.S. 107, 71 L.Ed.2d 783 (1982).


       XV.     THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
               INSTRUCTING THE JURY ON THE (E)(9) AGGRAVATING
               FACTOR.

               Assignment of Error No. 51, Rp. 233.


       The Trial Court committed reversible constitutional error by instructing the jury on the

especially heinous, atrocious, or cruel (e)(9) aggravating factor pursuant to the pattern

instruction.   The (e)(9) instruction is unconstitutionally vague as interpreted by our appellate

courts and as applied in this case; it failed to narrow the class of death eligible defendants; and

the pattern jury instructions failed to adequately limit the application of this facially vague factor

in violation of the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution,

and Article I, §§ 18, 19 and 27 of the North Carolina Constitution. Maynard v. Cartwright, 486

U.S. 356, 100 L.Ed.2d 372 (1988); Godfrey v. Georgia, 446 U.S. 420, 64 L.E.2d 398 (1980);.

Rpp. 183-84, York Vol. V Tpp. 403-404) The jury found this factor in sentencing. (Rp. 191)

Accordingly, the Trial Court‟s submission of this aggravating factor along with its inadequate

jury instructions erroneously allowed jurors to find the (e)(9) aggravator in violation of the

defendant‟s constitutional rights. Recognizing that this Court has rejected this argument in State

v. Boyd, 311 N.C. 408, 319 S.E.2d 189 (1984), cert. denied, 417 U.S. 1030, 85 L.Ed.2d 342

(1985), the defendant respectfully asks this Court to reconsider and order a new sentencing

hearing, and hereby preserves the issue in the event of further review. See Engle v. Isaac, 456

U.S. 107, 71 L.Ed.2d 783 (1982).
                                               123

       XVI. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
            FAILING TO INSTRUCT JURORS THAT THEY “MUST”
            RATHER    THAN    “MAY”    CONSIDER   MITIGATING
            CIRCUMSTANCES WHEN DECIDING ISSUES THREE AND
            FOUR DURING THEIR JURY DELIBERATIONS.

               Assignment of Error No. 56, Rp. 234.


       The Trial Court committed plain error by refusing to instruct jurors that they “must”

rather than “may” consider mitigating circumstances when deciding Issues 3 and 4 during their

jury deliberations. Rpp. 184-85. The word “may” erroneously allowed jurors to ignore the

mitigation established at Issue 2 in violation of the Fifth, Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution and N.C. Const. art I, §§ 19, 23, and 27.

Accordingly, the Trial Court‟s instructions erroneously allowed jurors to disregard relevant

mitigating evidence.


       This error rendered the defendant‟s sentencing proceeding fundamentally unfair. State v.

Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). Recognizing that this Court has rejected

this argument in State v. Lee, 335 N.C. 244, 439 S.E.2d 547, cert. denied, 130 L.Ed.2d 162

(1994), the defendant respectfully requests that this Court reconsider its ruling in that case and

order a new sentencing hearing, and hereby preserves the issue in the event of further review.

See Engle v. Isaac, 456 U.S. 107, 71 L.Ed.2d 783 (1982).


       XVII. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
             PLACING THE BURDEN OF PROOF ON DEFENDANT TO
             SATISFY THE JURY WITH RESPECT TO MITIGATING
             CIRCUMSTANCES AND BY FAILING TO INSTRUCT JURORS
             THAT PROOF BY THE PREPONDERANCE OF THE EVIDENCE
             IS PROOF WHICH INDICATES THAT IT IS MORE LIKELY
             THAN NOT THAT A MITIGATING CIRCUMSTANCE EXISTS.

               Assignment of Error No. 55, Rp. 234.
                                               124

       The Trial Court committed plain constitutional error by placing the burden of proof on

the defendant to satisfy the jury with respect to mitigating circumstances and by failing to

instruct jurors that proof by the preponderance of the evidence is proof which indicates that it is

more likely than not that a mitigating circumstance exists. Rpp. 171-72. The term “satisfy” or

“satisfaction” was impermissibly vague and permitted jurors to apply a burden of proof higher

than the preponderance standard when evaluating the mitigation evidence presented by the

defense in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States

Constitution and N.C. Const. art I, §§ 19, 23, and 27. The Trial Court instructed jurors that

“mitigating circumstance[s] must be established by a preponderance of the evidence. That is, the

evidence taken as a whole must satisfy . . . you that any mitigating circumstance exists. If the

evidence satisfies . . .”   (Rp. 171)   Accordingly, the Trial Court‟s instructions erroneously

allowed jurors to apply a burden of proof higher than the preponderance standard when they

were evaluating mitigating evidence. This plain error rendered the defendant‟s sentencing

proceeding fundamentally unfair. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378

(1983). Recognizing that this Court has rejected this argument in State v. Payne, 337 N.C. 505,

448 S.E.2d 93 (1994), cert. denied, 131 L.Ed.2d 292 (1995), the defendant respectfully asks this

Court to reconsider and order a new sentencing hearing, and hereby preserves the issue in the

event of further review. See Engle v. Isaac, 456 U.S. 107, 71 L.Ed.2d 783 (1982).


       XVIII.THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
             ERRONEOUSLY INSTRUCTING JURORS THEY COULD FIND
             THAT A MITIGATING CIRCUMSTANCE EXISTS AND
             SIMULTANEOUSLY FIND THE MITIGATING CIRCUMSTANCE
             HAS NO MITIGATING VALUE.

               Assignment of Error No. 54, Rpp. 233-34.


       The Trial Court committed plain error by erroneously instructing jurors they could find

that a mitigating circumstance exists and simultaneously find the mitigating circumstance has no
                                               125

mitigating value. If jurors were to find that a mitigating circumstance existed, it would have

mitigating value as a matter of law. N.C.P.I. 150.10 erroneously permits jurors to ignore

mitigating circumstances established by the evidence in violation of the Fifth, Sixth, Eighth, and

Fourteenth Amendments to the United States Constitution and Article I, §§ 19, 23, 24 and 27 of

the North Carolina Constitution. The Trial Court instructed jurors pursuant to the pattern. (Rpp.

173-182) These instructions erroneously allowed jurors to ignore mitigating circumstances and

denied defendant the constitutionally required individual consideration of his background and

character, and the crime. Specifically, the trial court should have instructed jurors that evidence

of Defendant‟s personality disorders was mitigating as a matter of law. See Penry v. Lynaugh,

492 U.S. 302, 319, 106 L.Ed.2d 256 (1989); Eddings v. Oklahoma, 455 U.S. 104, 71 L.Ed.2d 1

(1982); Lockett v. Ohio, 438 U.S. 586, 605, 57 L.Ed.2d 973 (1978). Absent these erroneous

instructions, jurors would have found significantly more mitigating circumstances and returned a

sentence of life imprisonment without parole instead of death. This plain error rendered the

defendant‟s sentencing proceeding fundamentally unfair. State v. Odom, 307 N.C. 655, 660, 300

S.E.2d 375, 378 (1983). Recognizing that this Court has previously rejected this argument in

State v. Fullwood, 323 N.C. 371, 395-97, 373 S.E.2d 518, 533 (1988), sentence vacated on other

grounds, 494 U.S. 1022, 108 L.Ed.2d 602 (1990), the defendant respectfully asks this Court to

reconsider and order a new sentencing hearing, and hereby preserves the issue in the event of

further review. See Engle v. Isaac, 456 U.S. 107, 71 L.Ed.2d 783 (1982).


       XIX. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
            ERRONEOUSLY INSTRUCTING THE JURY THAT UNANIMITY
            IS REQUIRED TO ANSWER “NO” TO ISSUES I, III, & IV ON
            THE ISSUES AND RECOMMENDATIONS SENTENCING FORM.

               Assignment of Error No. 57, Rpp. 234-35.


       Recognizing that this Court has previously rejected this argument in State v. Thomas, 350

N.C. 315, 514 S.E.2d 486 (1999), the defendant respectfully asks this Court to reconsider and
                                              126

order a new sentencing hearing, and hereby preserves the issue in the event of further review.

See Engle v. Isaac, 456 U.S. 107, 71 L.Ed.2d 783 (1982).


       XX.    THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
              SENTENCING DEFENDANT TO DEATH BECAUSE THE DEATH
              PENALTY IS INHERENTLY CRUEL AND UNUSUAL; THE
              NORTH CAROLINA CAPITAL SENTENCING SCHEME IS
              UNCONSTITUTIONALLY VAGUE AND OVERBROAD; AND
              THE DEATH SENTENCE IN THIS CASE WAS NOT SUPPORTED
              BY THE EVIDENCE, WAS DISPROPORTIONATE, AND WAS
              IMPOSED UNDER THE INFLUENCE OF PASSION, PREJUDICE,
              AND OTHER ARBITRARY FACTORS.

              Assignment of Error No. 4, Rp. 217.


       The Trial Court committed reversible constitutional error by sentencing the defendant to

death because the death penalty is inherently cruel and unusual and the North Carolina capital

sentencing scheme, G.S. § 15A-2000, is vague and overbroad. G.S. § 15A-2000 also permits

juries to make excessively subjective sentencing determinations.         Moreover, our capital

sentencing scheme is applied arbitrarily and pursuant to a pattern of discrimination on the basis

of race and sex of defendants and victims, and on the basis of defendants‟ poverty. Finally, in

this case, the death penalty was imposed under the arbitrary influence of passion and prejudice.

Recognizing that this Court has previously rejected this argument in State v. Keel, 337 N.C. 469,

447 S.E.2d 748 (1994), cert. denied, 131 L.Ed.2d 147 (1995), and State v. Green, 329 N.C. 686,

406 S.E.2d 852 (1991), the defendant asks this Court to reconsider and vacate his death sentence,

or in the alternative, order a new sentencing hearing, and hereby preserves these issues in the

event of further review. See Engle v. Isaac, 456 U.S. 107, 71 L.Ed.2d 783 (1982).


                                        CONCLUSION

       For all the foregoing reasons, defendant respectfully contends that his convictions and

sentences should be vacated.
                                               127

       Respectfully submitted this the 15th day of November, 2001.

                                             Electronic Submission

        I certify that all of the attorneys listed below have authorized me to list their names on
this document as if they had personally signed it.

                                             Janet Moore
                                             Assistant Appellate Defender
                                             c/o Office of the Public Defender
                                             60 Court Plaza
                                             Asheville, North Carolina 28801-3580
                                             (828) 232-2588

                                             Staples Hughes
                                             Appellate Defender
                                             Office of the Appellate Defender
                                             123 West Main Street, Suite 600
                                             Durham, North Carolina 27701
                                             (919) 560-3334

                                             ATTORNEYS FOR DEFENDANT
                                              128




                       CERTIFICATE OF FILING AND SERVICE

       I hereby certify that the original Defendant-Appellant‟s Brief has been filed pursuant to
Rule 26 by electronic means with the Clerk of the Supreme Court of North Carolina.

       I further hereby certify that a copy of the above and foregoing Defendant-Appellant‟s
Brief has been duly served upon Valerie B. Spalding, Special Deputy Attorney General, North
Carolina Department of Justice, Post Office Box 629, Raleigh, North Carolina 27602, by first-
class mail, postage prepaid.

       This the 15th day of November, 2001.


                                            Electronic Submission
                                            Janet Moore
                                            Assistant Appellate Defender
No. 373A00                                                                                                        6A DISTRICT

                              SUPREME COURT OF NORTH CAROLINA

                 ****************************************************

STATE OF NORTH CAROLINA                                    )
                                                           )
               v.                                          )          From Halifax
                                                           )
LIONEL LEWIS ROGERS                                        )

                 ****************************************************

                          DEFENDANT-APPELLANT‟S BRIEF APPENDIX

                 ****************************************************

     Orders Extending Time to File Brief on Appeal ......................................................1

     U.S. Census Bureau, “QuickFacts, Halifax County, North Carolina” .....................3

     Transcript . …… .......................................................................................................5

				
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