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									No. 1A05                                       FIFTH JUDICIAL DISTRICT


                     NORTH CAROLINA SUPREME COURT


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

STATE OF NORTH CAROLINA            )
                                   )
           v.                      )     From New Hanover
                                   )
PAUL DEWAYNE CUMMINGS              )

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

                     DEFENDANT-APPELLANT’S BRIEF
                                 INDEX

TABLE OF AUTHORITIES………………………………………………….                iv

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

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

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW…………       4

STATEMENT OF THE FACTS………………………………………………                4

ARGUMENT………………………………………………………………….                      23

A.     DENIAL OF RIGHT TO FAIR AND IMPARTIAL JURY

I.     THE TRIAL COURT‟S DENIAL OF MR. CUMMINGS‟
       CHALLENGE OF THE CHIEF OF DETECTIVES OF
       THE CAROLINA BEACH POLICE DEPARTMENT,
       WHO COULD NOT BE FAIR AND IMPARTIAL IN
       THIS CAPITAL CASE, DEPRIVED MR. CUMMINGS
       OF HIS RIGHTS TO DUE PROCESS OF LAW AND
       TRIAL BY JURY…………………………………………………….               23

II.    THE TRIAL COURT ABUSED ITS DISCRETION IN
       DENYING MR. CUMMINGS‟ CHALLENGE FOR CAUSE
       OF JUROR BOSTON, AN AUTOMATIC DEATH PENALTY
       JUROR EXCLUDABLE UNDER MORGAN v. ILLINOIS……………   36

III.   THE TRIAL COURT‟S MISAPPREHENSION OF THE
       NATURE OF “STAKE OUT” QUESTIONS DEPRIVED
       MR. CUMMINGS OF HIS RIGHT TO ELICIT INFOR-
       MATION RELEVANT TO THE EXERCISE OF CAUSE
       AND PEREMPTORY CHALLENGES……………………………….           44

IV.    THE TRIAL COURT ABUSED ITS DISCRETION IN
       DENYING MR. CUMMINGS‟ REQUEST TO QUESTION
       PROSPECTIVE JURORS WHETHER ECONOMIC FACTORS
       RELATING TO THE COST OF INCARCERATION WOULD
       UNLAWFULLY ENTER INTO THEIR PENALTY PHASE
       DECISION MAKING…………………………………………………..             49

B.     DENIAL OF RIGHT TO INFORM JURY OF LAW RELEVANT
       TO THE PENALTY PHASE DECISION

V.     THE TRIAL COURT ERRED IN REFUSING TO PERMIT
       COUNSEL TO INFORM THE JURY IN PENALTY PHASE
                                   ii


        CLOSING ARGUMENT THAT LIFE IS THE PRESUMPTIVE
        SENTENCE UNDER NORTH CAROLINA‟S CAPITAL
        SENTENCING SCHEME……………………………………………..                   52

C,      PROSECUTORIAL PENALTY PHASE CLOSING ARGUMENT

VI.     THE TRIAL COURT ERRED IN FAILING TO INTERVENE
        EX MERO MOTU WHEN THE STATE URGED THE JURY IN
        PENALTY PHASE CLOSING TO ADD SIXTEEN PECUNIARY
        GAIN AGGRAVATING FACTORS TO ITS PENALTY PHASE
        CALCULUS……………………………………………………………                        57

VII.    THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION
        IN ALLOWING THE PROSECUTOR TO ARGUE IN PENALTY
        PHASE CLOSING THAT THE JURY HAD ALREADY FOUND
        THAT AN AGGRAVATING FACTOR EXISTED…………………..            61

VIII.   THE TRIAL COURT ERRED IN PERMITTING THE STATE
        TO ARGUE A MATTER NOT IN EVIDENCE………………………             64

IX.     THE TRIAL COURT ERRED IN FAILING TO INTERVENE
        EX MERO MOTU WHEN THE STATE ARGUED IN PENALTY
        PHASE CLOSING THAT MERCY WAS NOT PART OF THE
        LAW IN DETERMINING A PENALTY PHASE VERDICT……….         68

D.      INSTRUCTIONAL DEFECT

X.      THE TRIAL COURT ERRED IN INSTRUCTING THE JURY
        PURSUANT TO N.C.G.S. §15A-2000(F)(1) AS THE EVIDENCE
        WAS INSUFFICIENT TO SUPPORT A JURY FINDING THAT
        MR. CUMMINGS‟ PRIOR CRIMINAL HISTORY WAS
        INSIGNIFICANT……………………………………………………..                    71

E.      MOTION FOR APPROPRIATE RELIEF

STATEMENT OF THE FACTS………………………………………………                       76

XI.     THE TRIAL COURT ERRED IN REFUSING TO ADMIT
        DAVID FUHR‟S AFFIDAVIT AS SUBSTANTIVE EVIDENCE…..      85

XII.    THE TRIAL COURT ERRED IN PERMITTING JAMES
        COLEMAN TO TESTIFY TO WHAT HE THOUGHT
        JEREMY EICHER AND BEN DAVID MEANT, AS
        THE TESTIMONY FELL OUTSIDE THE PURVIEW
        OF LAY OPINION TESTIMONY…………………………………….                90
                               iii


F.      PRESERVATION CLAIMS

XIII.   THE TRIAL COURT ERRED IN SUBMITTING THE
        VAGUE AND OVERBROAD “ESPECIALLY HEINOUS,
        ATROCIOUS, OR CRUEL” AGGRAVATING FACTOR…………..   93

XIV. THE TRIAL COURT LACKED JURISDICTION TO
     ENTER A DEATH SENTENCE DUE TO THE
     ABSENCE OF AGGRAVATING FACTORS IN THE
     INDICTMENT…………………………………………………………                   97

XV.     THE TRIAL COURT LACKED JURISDICTION TO
        ENTER A JUDGMENT OF CONVICTION OF
        FIRST-DEGREE MURDER, AS THE SHORT-FORM
        INDICTMENT FAILED TO ALLEGE THE ELEMENTS
        OF THE OFFENSE…………………………………………………….             99

XVI. THE TRIAL COURT‟S IMPOSITION OF A DEATH
     SENTENCE VIOLATED INTERNATIONAL LAW…………………         101

CONCLUSION…………………………………………………………………                     102

CERTIFICATE OF FILING AND SERVICE………………………………….         103
                                          iv


                                TABLE OF AUTHORITIES

                                           CASES

Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)………         44

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d
435 (2000)…………………………………………………………………….                                         98,100

Bell v. Cone, 543 U.S. 447, 125 S.Ct. 847, 160 L.Ed.2d 881 (2005)…………         97

Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935)…..   64,65

Bullard v. State, 436 So.2d 962 (Fla. App. 1983)…………………………….                  60

Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231
(1985)…………………………………………………………………………                                            59

California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987)….     70

Callins v. Collins, 510 U.S. 1141, 114 S.Ct. 1127, 127 L.Ed.2d 435 (1994)…    69

Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633 (1947)………….        101

Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948)…………         100

Davis v. State, 656 So.2d 560 (Fla. App. 1995)……………………………..                   31

Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d
431 (1974)…………………………………………………………………….                                         60

Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982)….       27

Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976)….     55

Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980)..     94

Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)…...      69

Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973)..     24

Hamilton v. State, 547 So.2d 630 (Fla. 1989)……………………………….                     31

Hodgson v. Vermont, 168 U.S. 262, 18 S.Ct. 80, 42 L.Ed. 461 (1897)……..        100

Hutcheson v. State, 246 Ga. 13, 268 S.E.2d 643 (1980)…………………….                30
                                          v


In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed.2d 942 (1955)………        27

Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961)…………         24,27,31,36

Johnson v. Reynolds, 97 Fla. 591, 121 So. 793 (1929)………………………                44

Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311
(1999)………………………………………………………………………..                                          98,100

Kansas v. Marsh, __ U.S. __, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006)……        27,53,54,55,
                                                                             69

Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)……..      42,69,70

Martinez v. State, 795 So.2d 279 (Fla. App. 2001)…………………………                  31

Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d
372 (1988)……………………………………………………………………                                         94

McGuire v. State, 100 Nev. 153, 677 P.2d 1060 (1984)……………………..               60

Mhoon v. State, 464 So.2d 77 (Miss. 1985)…………………………………                       36

Minch v. State, 934 P.2d 764 (Alaska App. 1997)…………………………...                 31

Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992)…    24,27,31,37,
                                                                             43,45,48,50,
                                                                             52

Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)…….     97,98,100

Rosales-Lopez v. United States, 451 U.S. 182, 101 S.Ct. 1629, 68 L.Ed.2d
22 (1981)………………………………………………………………………                                         48,52

Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)...   63

Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990)………     96

State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005)……………………….                63

State v. Allen, 353 N.C. 504, 546 S.E.2d 372 (2001)……………………….                67

State v. Anderson, 350 N.C. 152, 513 S.E.2d 296, cert. denied, 528
U.S. 973, 120 S.Ct. 417, 145 L.Ed.2d 326 (1999)………………………….                   48,49

State v. Anderson, 322 N.C. 22, 366 S.E.2d 459 (1988)……………………                66
                                        vi


State v. Artis, 325 N.C. 278, 384 S.E.2d 470 (1989), vacated on other
grounds, 494 U.S. 1023, 110 S.Ct. 1466, 108 L.Ed.2d 604 (1990)…………      72,75

State v. Baldwin, 117 N.C. App. 713, 453 S.E.2d 193, cert. denied,
341 N.C. 653, 462 S.E.2d 578 (1995)……………………………………….                     97,99

State v. Barber, 335 N.C. 120, 436 S.E.2d 106 (1993), cert. denied,
512 U.S. 1239, 114 S.Ct. 2747, 129 L.Ed.2d 865 (1994)……………………           53,86,90,94,
                                                                        97,99,101

State v. Barden, 356 N.C. 316, 572 S.E.2d 108 (2002), cert. denied,
538 U.S. 1040, 123 S.Ct. 2087, 155 L.Ed.2d 1074 (2003)…………………..         64,72

State v. Bell, 344 N.C. 290, 474 S.E.2d 345 (1996), cert. denied, 520
U.S. 1180, 117 S.Ct. 1457, 137 L.Ed.2d 561 (1997)………………………..            35

State v. Bell, 164 N.C. App. 83, 594 S.E.2d 824 (2004)…………………….         90

State v. Bey, 112 N.C. 123, 548 A.2d 887 (1988)……………………………              61

State v. Bishop, 343 N.C. 518, 472 S.E.2d 842 (1996), cert. denied,
519 U.S. 1097, 117 S.Ct. 779, 136 L.Ed.2d 723 (1997)…………………….           71

State v. Bozeman, 866 So.2d 1029 (La. App.), writ denied, 877 So.2d
141 (La. 2004)………………………………………………………………..                                28,29

State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000), cert. denied,
531 U.S. 1130, 121 S.Ct. 890, 148 L.Ed.2d 797 (2001)……………………..          91

State v. Brown, 315 N.C. 40, 337 S.E.2d 808 (1985), cert. denied, 476
U.S. 1165, 106 S.Ct. 2293, 90 L.Ed.2d 773 (1986)………………………….             95

State v. Bryant, 282 N.C. 92, 191 S.E.2d 745 (1972)………………………..          49

State v. Burrus, 344 N.C. 79, 472 S.E.2d 867 (1996)………………………..          34,63

State v. Chapman, 359 N.C. 328, 611 S.E.2d 794 (2005)……………………           45

State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979), cert. denied,
446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1980)………………………            57,64

State v. Conner, 335 N.C. 618, 440 S.E.2d 826 (1994)……………………..          37,48

State v. Craig, 308 N.C. 446, 302 S.E.2d 740, cert. denied, 464 U.S.
908, 104 S.Ct. 263, 78 L.Ed.2d 247 (1983)………………………………….                 65
                                       vii


State v. Cunningham, 333 N.C. 744, 429 S.E.2d 718 (1993)………………..        32,33,35

State v. Cuthrell, 233 N.C. 274, 63 S.E.2d 549 (1951)……………………….         93

State v. Duke, 360 N.C. 110, 623 S.E.2d 11 (2005)…………………………..           97

State v. Eagle, 233 N.C. 218, 63 S.E.2d 170 (1951)………………………….           67

State v. Elliott, __ N.C. __, 628 S.E.2d 735 (2006)………………………….          52

State v. Fletcher, 354 N.C. 455, 555 S.E.2d 534 (2001), cert. denied,
537 U.S. 846, 123 S.Ct. 184, 154 L.Ed.2d 73 (2002)………………………..           46

State v. Forney, 310 N.C. 126, 310 S.E.2d 20 (1984)……………………….           67

State v. Frye, 341 N.C. 470, 461 S.E.2d 664 (1995), cert. denied, 517
U.S. 1123, 116 S.Ct. 1359, 134 L.Ed.2d 526(1996)…………………………              70

State v. Gell, 351 N.C. 192, 524 S.E.2d 332, cert. denied, 531 U.S.
867, 121 S.Ct. 163, 148 L.Ed.2d 110 (2000)…………………………………                 33

State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), cert. denied,
532 U.S. 931, 121 S.Ct. 1379, 149 L.Ed.2d 305 (2001)……………………..          95

State v. Goodman, 298 N.C. 1, 257 S.E.2d 569 (1979)………………………            94,95

State v. Greer, 238 N.C. 325, 77 S.E.2d 917 (1953)…………………………            98

State v. Gregory, 340 N.C. 365, 459 S.E.2d 638 (1995)……………………..         49

State v. Hallal, 557 So.2d 1388 (La. 1990)………………………………….                31

State v. Harris, 141 N.J. 525, 662 A.2d 333 (1995)…………………………            60

State v. Hennis, 323 N.C. 279, 372 S.E.2d 523 (1988)………………………           49

State v. Hightower, 331 N.C. 636, 417 S.E.2d 237 (1992)…………………..        24,33

State v. Hoffman, 349 N.C. 167, 505 S.E.2d 80 (1998), cert. denied,
526 U.S. 1053, 119 S.Ct. 1362, 143 L.Ed.2d 522 (1999)…………………….          70

State v. Hurst, 360 N.C. 181, 624 S.E.2d 309 (2006)………………………..          71,73

State v. Irwin, 304 N.C. 93, 282 S.E.2d 439 (1981)………………………….           73

State v. Jackson, 32 N.J. 148, 203 A.2d 1 (1964)……………………………             32,34
                                        viii


State v. Jaynes, 353 N.C. 534, 549 S.E.2d 179 (2001), cert. denied,
535 U.S. 934, 122 S.Ct. 1310, 152 L.Ed.2d 220 (2002)……………………..           46

State v. Jaynes, 342 N.C. 249, 464 S.E.2d 448 (1995), cert. denied,
518 U.S. 1024, 116 S.Ct. 2563, 135 L.Ed.2d 1080 (1996)…………………..          32

State v. Joiner, 163 La. 609, 112 So. 503 (1927)…………………………….             44

State v. Jones, 357 N.C. 409, 584 S.E.2d 751 (2003)………………………..           64

State v. Jones, 355 N.C. 117, 558 S.E.2d 97 (2002)…………………………             57,58,59,61,
                                                                         62,63,64,65,
                                                                         68

State v. Jones, 347 N.C. 193, 491 S.E.2d 641 (1997)………………………..           48,50

State v. Jones, 339 N.C. 114, 451 S.E.2d 826 (1994), cert. denied, 515
U.S. 1169, 115 S.Ct. 2634, 132 L.Ed.2d 873 (1995)………………………..             75

State v. Jones, 296 N.C. 495, 251 S.E.2d 425 (1979)………………………..           59

State v. Jordan, 149 N.C. App. 838, 562 S.E.2d 465 (2002)…………………         66

State v. Lee, 292 N.C. 617, 234 S.E.2d 574 (1977)………………………….             30,31,32,33,44

State v. Leggett, 135 N.C. App. 168, 519 S.E.2d 328 (1999)…………………        89

State v. Leonard, 296 N.C. 58, 248 S.E.2d 853 (1978)……………………...          25,33,35

State v. Lloyd, 321 N.C. 301, 364 S.E.2d 316, sentence vacated on
other grounds, 488 U.S. 807, 109 S.Ct. 38, 102 L.Ed.2d 18 (1988)…………     95

State v. Martin, 303 N.C. 246, 278 S.E.2d 214, cert. denied, 454 U.S.
933, 102 S.Ct. 431, 70 L.Ed.2d 240 (1981)………………………………….                  95

State v. McCollum, 334 N.C. 208, 443 S.E.2d 144 (1993), cert. denied,
512 U.S. 1254, 114 S.Ct. 2784, 129 L.Ed.2d 895 (1994)…………………….           60

State v. Mickey, 347 N.C. 508, 495 S.E.2d 669 (1986)………………………            45

State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975)………………………..            55,68

State v. Nickerson, 320 N.C. 603, 359 S.E.2d 760 (1987)……………………          86

State v. Nobles, 350 N.C. 483, 515 S.E.2d 885 (1995)………………………            63
                                         ix


State v. Oliphant, 220 La. 489, 56 So.2d 846 (1952)………………………..             28

State v. Pamplin, 138 S.W.2d 283 (Tenn. App. 2003)……………………….               32

State v. Paul, 738 So.2d 1128 (La. App. 1999)………………………………                  32

State v. Perkins, 345 N.C. 254, 481 S.E.2d 25, cert. denied, 522 U.S.
837, 118 S.Ct. 111, 139 L.Ed.2d 64 (1997)…………………………………..                   42

State v. Quisenberry, 319 N.C. 228, 343 S.E.2d 446 (1987)…………………           73

State v. Reece, 319 N.C. 110, 353 S.E.2d 352 (1987), overruled on
other grounds by State v. Barnes, 345 N.C. 184, 481 S.E.2d 44 (1997)……..   95

State v. Roache, 358 N.C. 243, 595 S.E.2d 381 (2004)………………………              90,91

State v. Rogers, 35 N.C. 420, 462 S.E.2d 859 (2002)………………………..             59

State v. Rook, 304 N.C. 201, 283 S.E.2d 732 (1981), cert. denied, 455
U.S. 1038, 102 S.Ct. 1741, 72 L.Ed.2d 155 (1982)…………………………..               95

State v. Rose, 353 N.W.2d 565 (Minn. Ct. App. 1984)……………………….              60

State v. Sanderson, 336 N.C. 1, 442 S.E.2d 33 (1994)……………………….             59,61,66,67

State v. Sexton, 336 N.C. 321, 444 S.E.2d 879, cert. denied, 513 U.S.
1006, 115 S.Ct. 525, 130 L.Ed.2d 429 (1994)………………………………..                  72,75

State v. Shope, 118 N.C. App. 270, 454 S.E.2d 716 (1995)…………………            35,44

State v. Skeen, 182 N.C. 844, 109 S.E. 71 (1921)…………………………...              91

State v. Smith, 359 N.C. 199, 607 S.E.2d 607, cert. denied, __ U.S. __,
126 S.Ct. 109, 163 S.E.2d 121 (2005)………………………………………                        66

State v. Smith, 352 N.C. 531, 532 S.E.2d 773 (2000), cert. denied,
532 U.S. 949, 121 S.Ct. 263, 149 L.Ed.2d 360 (2001)………………………               66

State v. Spaulding, 288 N.C. 397, 219 S.E.2d 178 (1975), judgment
vacated on other grounds, 428 U.S. 904, 96 S.Ct. 3210, 49 L.Ed.2d
1210 (1976)………………………………………………………………….                                      91

State v. Spinks, 136 N.C. App. 153, 523 S.E.2d 129 (1999)…………………           89

State v. Stanley, 310 N.C. 332, 312 S.E.2d 393 (1984)……………………...           94,97,99
                                          x


State v. Stokes, 274 N.C. 409, 163 S.E.2d 770 (1968)………………………                98,100

State v. Syriani, 333 N.C. 350, 428 S.E.2d 118, cert. denied, 510 U.S.
948, 114 S.Ct. 392, 126 L.Ed.2d 341 (1993)…………………………………                      45

State v. Trull, 349 N.C. 428, 509 S.E.2d 178 (1998), cert. denied, 528
U.S. 835, 120 S.Ct. 95, 145 L.Ed.2d 80 (1999)………………………………                    23,36

State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975), vacated in part,
428 U.S. 902, 96 S.Ct. 3204, 49 L.Ed.2d 1206 (1976)……………………….                45

State v. Wallace, 351 N.C. 481, 528 S.E.2d 326, cert. denied, 531 U.S.
1018, 121 S.Ct. 581, 148 L.Ed.2d 498 (2000)…………………………………                     100

State v. Walls, 342 N.C. 1, 463 S.E.2d 738 (1995)……………………………                 72

State v. Watson, 294 N.C. 159, 240 S.E.2d 440 (1978)………………………                93

State v. Watts, 357 N.C. 366, 584 S.E.2d 740 (2003), cert. denied, 541
U.S. 944, 124 S.Ct. 1673, 158 L.Ed.2d 370 (2004)…………………………..                 71

State v. White, 105 N.H. 159, 196 A.2d 33 (1963)…………………………...                34

State v. Wiley, 355 N.C. 592, 565 S.E.2d 22 (2002), cert. denied, 537
U.S. 1117, 123 S.Ct. 882, 154 L.Ed.2d 795 (2003)…………………………..                 49,50

State v. Williams, 339 N.C. 1, 452 S.E.2d 245 (1994), cert. denied, 516
U.S. 833, 116 S.Ct. 109, 133 L.Ed.2d 61 (1995), overruled on other
grounds by State v. Warren, 347 N.C. 309, 492 S.E.2d 609 (1997)………….         26

State v. Williams, 317 N.C. 474, 346 S.E.2d 405 (1986)……………………..             67

State v. Wilson, 335 N.C. 220, 436 S.E.2d 831 (1993)……………………….               66

State v. Wilson, 322 N.C. 117, 367 S.E.2d 589 (1988)……………………….               72,73

State v. Zuniga, 320 N.C. 233, 357 S.E.2d 898, cert. denied, 484 U.S.
959, 108 S.Ct. 359, 98 L.Ed.2d 384 (1987)…………………………………..                     57,58

Stringer v. Black, 503 U.S. 222, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992)…..   61

Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182
(1993)…………………………………………………………………………                                           63

Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759,
overruled on other grounds by Batson v. Kentucky, 476 U.S. 79,
                                           xi


106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)………………………………………..                        49

Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978)…..    29,56

Teague v. Tennessee, 473 U.S. 911, 105 S.Ct. 3538, 87 L.Ed.2d 662 (1985)..   70

United States v. Amerson, 938 F.2d 116 (8th Cir. 1991)……………………..             31

United States v. Coffin, 156 U.S. 432, 15 S.Ct. 394, 39 L.Ed. 481 (1895)….   29

United Stats v. Picknarcek, 427 F.2d 1290 (9th Cir. 1970)…………………..           60

United States v. Pink, 315 U.s. 203, 62 S.Ct. 552, 86 L.Ed. 796 (1942)…….    101

Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)….     44,48

Williams v. State, 658 P.2d 49 (Okla. Crim. App. 1983)……………………               60

Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d
944 (1976)……………………………………………………………………                                         27,70,76

Zschernig v. Miller, 389 U.S. 429, 88 S.Ct. 664, 19 L.Ed.2d 683 (1968)……     101

                                     CONSTITUTIONS

North Carolina Constitution

       Article I, §18…………………………………………………………….                                24,37,44,45,
                                                                             53,57,61,62,
                                                                             65,68,69,72,
                                                                             96,101
       Article I, §19……………………………………………………………                                 24,37,44,45,
                                                                             53,57,61,62,
                                                                             65,68,69,72,
                                                                             96,101
       Article I, §22……………………………………………………………                                 99,101
       Article I, §23……………………………………………………………                                 24,37,44,45,
                                                                             53,57,61,62,
                                                                             65,68,69,72,
                                                                             96,101
       Article I, §24……………………………………………………………                                 24,44,45,53,
                                                                             57,61,62,65,
                                                                             68,69,72,96,
                                                                             101
       Article I, §27……………………………………………………………                                 24,44,45,53,
                                                                             57,61,62,65,
                                        xii


                                                                           68,69,72,96,
                                                                           101
       Article I, §35……………………………………………………………                               57,101

United States Constitution

       Amendment VI…………………………………………………………                                  24,44,45,53,
                                                                           61,62,65,68,
                                                                           69,72,96,99,
                                                                           101
       Amendment VIII………………………………………………………                                 24,44,45,53,
                                                                           61,62,65,68,
                                                                           69,72,96,99,
                                                                           101
       Amendment XIV………………………………………………………                                  24,37,44,45,
                                                                           53,61,62,65,
                                                                           68,69,72,96,
                                                                           99,101
       Article VI………………………………………………………………                                  101

                                      STATUTES

North Carolina General Statutes

       §8C-1, Rule 701……………………………………………………….                               90
       §8C-1, Rule 803……………………………………………………….                               86,88
       §14-17…………………………………………………………………
       §15-144………………………………………………………………..
       §15A-1212…………………………………………………………….                                   32,34
       §15A-1214……………………………………………………………..                                  35,42
       §15A-1230……………………………………………………………..                                  65
       §15A-1443…………………………………………………………….                                   93
       §15A-2000……………………………………………………………..                                  53,54,55,58,
                                                                           62,72,97,99

                                  OTHER AUTHORITIES

112 A.L.R. 531………………………………………………………………..                                   24

Bowers, Sandys & Steiner, Foreclosed Impartiality in Capital Sentencing:
Jurors’ Predispositions, Guilt-Trial Experience, and Premature Decision
Making, 83 Cornell L. Rev. 1476 (1998)………………………………………                      42,43

Brinkmann, Note: The Presumption of Life: A Starting Point for a Due
Process Analysis of Capital Sentencing, 94 Yale L.J. 351 (1984)…………….      56
                                       xiii


Broun, Brandis & Broun on North Carolina Evidence (6th ed. 2004)…………       86,93

Commentary, North Carolina Rules of Evidence………………………………                   93

50 C.J.S., Juries…………………………………………………………………                                 24

DeLaney, Better To Let Ten Guilty Men Live: The Presumption of Life --
A Principle to Govern Capital Sentencing, 14 Cap. Def. J. 283 (2002)………    56

International Covenant on Civil and Political Rights………………………….            101

Lanier & Acker, Capital Punishment, the Moratorium Movement and
Empirical Questions: Looking Beyond Innocence, Race and Bad
Lawyering in Death Penalty Cases, 10 Psych. Pub. Pol. And L. 577
(2004)…………………………………………………………………………..                                       51

Martin, Masking the Evil of Capital Punishment, 10 Va. J. Soc. Pol‟y & L
179 (2002)………………………………………………………………………                                      51

Note, Politics and the Death Penalty: Can Rational Discourse and Due
Process Survive the Perceived Political Pressure?, 21 Fordham Urb. L. J.
239 (1994)………………………………………………………………………                                      51

The Revised Rules of Professional Conduct of the North Carolina State
Bar (2003)……………………………………………………………………….                                     65
No. 1A05                                         FIFTH JUDICIAL DISTRICT


                       NORTH CAROLINA SUPREME COURT

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

STATE OF NORTH CAROLINA              )
                                     )
             v.                      )     From New Hanover
                                     )
PAUL DEWAYNE CUMMINGS                )

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

                       DEFENDANT-APPELLANT’S BRIEF

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

                            QUESTIONS PRESENTED

A.    DENIAL OF RIGHT TO FAIR AND IMPARTIAL JURY

      I.     WHETHER THE TRIAL COURT’S DENIAL OF MR.
             CUMMINGS’ CHALLENGE OF THE CHIEF OF
             DETECTIVES OF THE CAROLINA BEACH POLICE
             DEPARTMENT, WHO COULD NOT BE FAIR AND
             IMPARTIAL IN THIS CAPITAL CASE, DEPRIVED
             MR. CUMMINGS OF HIS RIGHTS TO DUE PROCESS
             OF LAW AND TRIAL BY JURY?

      II.    WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
             IN DENYING MR. CUMMINGS’ CHALLENGE FOR CAUSE
             OF JUROR BOSTON, AN AUTOMATIC DEATH PENALTY
             JUROR EXCLUDABLE UNDER MORGAN v. ILLINOIS?

      III.   WHETHER THE TRIAL COURT’S MISAPPREHENSION
             OF THE NATURE OF “STAKE OUT” QUESTIONS
             DEPRIVED MR. CUMMINGS OF HIS RIGHT TO ELICIT
             INFORMATION RELEVANT TO THE EXERCISE OF
             CAUSE AND PEREMPTORY CHALLENGES?

      IV.    WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
             IN DENYING MR. CUMMINGS’ REQUEST TO QUESTION
             PROSPECTIVE JURORS WHETHER ECONOMIC FACTORS
             RELATING TO THE COST OF INCARCERATION WOULD
             UNLAWFULLY ENTER INTO THEIR PENALTY PHASE
                                  2


            DECISION MAKING?

B.   DENIAL OF RIGHT TO INFORM JURY OF LAW RELEVANT TO
     THE PENALTY PHASE DECISION

     V.     WHETHER THE TRIAL COURT ERRED IN REFUSING
            TO PERMIT COUNSEL TO INFORM THE JURY IN
            PENALTY PHASE CLOSING ARGUMENT THAT LIFE
            IS THE PRESUMPTIVE SENTENCE UNDER NORTH
            CAROLINA’S CAPITAL SENTENCING SCHEME?

C.   PROSECUTORIAL PENALTY PHASE CLOSING ARGUMENT

     VI.    WHETHER THE TRIAL COURT ERRED IN FAILING TO
            INTERVENE EX MERO MOTU WHEN THE STATE URGED
            THE JURY IN PENALTY PHASE CLOSING TO ADD SIXTEEN
            PECUNIARY GAIN AGGRAVATING FACTORS TO ITS
            SENTENCING CALCULUS?

     VII.   WHETHER THE TRIAL COURT ERRED AND ABUSED
            ITS DISCRETION IN ALLOWING THE PROSECUTOR
            TO ARGUE IN PENALTY PHASE CLOSING THAT THE
            JURY HAD ALREADY FOUND THAT AN AGGRAVATING
            FACTOR EXISTED?

     VIII. WHETHER THE TRIAL COURT ERRED IN PERMITTING
           THE STATE TO ARGUE A MATTER NOT IN EVIDENCE?

     IX.    WHETHER THE TRIAL COURT ERRED IN FAILING TO
            INTERVENE EX MERO MOTU WHEN THE STATE ARGUED
            IN PENALTY PHASE CLOSING THAT MERCY WAS NOT
            PART OF THE LAW IN DETERMINING A PENALTY
            PHASE VERDICT?

D.   INSTRUCTIONAL DEFECT

     X.     WHETHER THE TRIAL COURT ERRED IN INSTRUCTING
            THE JURY PURSUANT TO N.C.G.S. §15A-2000(f)(1) AS THE
            EVIDENCE WAS INSUFFICIENT TO SUPPORT A JURY
            FINDING THAT MR. CUMMINGS’ PRIOR CRIMINAL
            HISTORY WAS INSIGNIFICANT?

E.   MOTION FOR APPROPRIATE RELIEF

     XI.    WHETHER THE TRIAL COURT ERRED IN REFUSING TO
            ADMIT DAVID FUHR’S AFFIDAVIT AS SUBSTANTIVE
                                                     3


                  EVIDENCE?

         XII.     WHETHER THE TRIAL COURT ERRED IN PERMITTING
                  JAMES COLEMAN TO TESTIFY TO WHAT HE THOUGHT
                  JEREMY EICHER AND BEN DAVID MEANT, AS THE
                  TESTIMONY FELL OUTSIDE THE PURVIEW OF LAY
                  OF LAY OPINION TESTIMONY?

F.       PRESERVATION CLAIMS

         XIII. WHETHER THE TRIAL COURT ERRED IN SUBMITTING
               THE VAGUE AND OVERBROAD “ESPECIALLY HEINOUS,
               ATROCIOUS, OR CRUEL” AGGRAVATING FACTOR?

         XIV. WHETHER THE TRIAL COURT LACKED JURISDICTION
              TO ENTER A DEATH SENTENCE DUE TO THE ABSENCE
              OF AGGRAVATING FACTORS IN THE INDICTMENT?

         XV.      WHETHER THE TRIAL COURT LACKED JURISDICTION
                  TO ENTER A JUDGMENT OF CONVICTION OF FIRST
                  DEGREE MURDER, AS THE SHORT-FORM INDICTMENT
                  FAILED TO ALLEGE ELEMENTS OF THE OFFENSE?

         XVI. WHETHER THE TRIAL COURT’S IMPOSITION OF A
              DEATH SENTENCE VIOLATED INTERNATIONAL LAW?

                                       STATEMENT OF THE CASE

         On 13 January 2003, the New Hanover County Grand Jury indicted Paul Dewayne

Cummings for murder, armed robbery, and felonious breaking and entering. (Rp. 6-7)1 The case

came on to be capitally tried at the 19 July 2004 Criminal Session of New Hanover County

Superior Court, the Honorable Jerry Cash Martin presiding. On 31 August 2004, the jury found

Mr. Cummings not guilty of breaking or entering, guilty of first degree murder, and guilty of

armed robbery. (Rp. 77; Vol. 31Tp. 4344) On 8 September 2004, the jury returned a binding


1
  The Record on Appeal will be designated as “R.” The transcript of pre-trial hearings will be referred to by the date
of the hearing. Transcripts of trial proceedings will be referred to by the number on the cover page of each volume.
Transcripts of trial proceedings prepared by Dawn Walton, with numbers that duplicate other volumes of transcript,
will be referred to by the number and designation “W,” as in “Vol. 1WT.” The transcript of Dr. McMillen‟s
videotaped deposition will be referred to as “M.” Transcripts of post-conviction proceedings will be referred to by
the designation “MAR.”
                                                 4


verdict that Mr. Cummings be put to death. (Rp. 124-131) On the same date, Judge Martin

sentenced Mr. Cummings to death and a consecutive term of one hundred seventeen (117) to one

hundred fifty (150) months for armed robbery. (Rp. 134-137; Vol. 36Tp. 4970-4971) From the

judgment imposed on 8 September 2004, Mr. Cummings entered Notice of Appeal. (Vol. 36Tp.

4975) On 13 September 2004, Mr. Cummings filed a Motion for Appropriate Relief pursuant to

N.C.G.S. §15A-1414. (Rp. 140-149) On 27 January 2005, Judge Martin denied the motion.

(Rp. 150-156) Mr. Cummings entered Notice of Appeal of that order. (Rp. 157)

                 STATEMENT OF GROUNDS FOR APPELLATE REVIEW

        The grounds for appellate review are a final judgment of the Superior Court under

N.C.G.S. § 15A-1444(a), of which this Court, under §7A-27(a), has exclusive jurisdiction. This

Court has jurisdiction to review the order denying the Motion for Appropriate Relief pursuant to

§§15A-1422(c) and 15A-1444(f).

                                  STATEMENT OF THE FACTS

        Paul Cummings admitted responsibility for the 4 October 2002 death of his neighbor Jane

Head. (Vol. 20Tp. 2063) Mr. Cummings, who was twenty-two years old at the time of the

homicide, lived in the Dogwood Circle Mobile Home Park in Wilmington, North Carolina with

his father Paul Ransom, mother Pearline Ransom, and brother Billy Cummings. 2 (Vol. 27Tp.

3647, 3662) The family presented the worst case of domestic violence and abuse that New

Hanover County Sheriff‟s Deputy Clay Meadows had ever investigated. (Vol. 33Tp. 4571-4572)

Mr. Cummings pursued diminished capacity and intoxication defenses resulting from the years

of physical and mental abuse suffered at the hands of his mother and father.


2
 Pearline Cummings and Paul Ransom did not formally marry until 1990. Their four children bore the last name
Cummings. Paul Ransom took no legal action to legitimize his children and Paul Cummings‟ last name was never
changed. (Vol. 27Tp. 3647-3648; Vol. 33Tp. 4649-4650)
                                           5


       So many violent episodes occurred in the household while Paul Cummings was growing

up that his mother could not recall all of them. Whenever Paul was present, no matter how

young he was, he stepped in between his mother and father and tried to help his mother as his

father beat her. He repeatedly called 911 to get help for her. (Vol. 28Tp. 3797-3798, 3874; Vol.

33Tp. 4656) The violence was so disturbing that Paul‟s cousin Luevelyn Locklear, who saw

Paul with bruises and scars, who saw Pearline Ransom when her face was beaten so severely that

her forehead had swelled well beyond her hairline, and who witnessed such incidents as Paul

Ransom repeatedly slamming his wife‟s head into concrete, became a social worker and wrote

the domestic violence policy for Hoke County in order to make a difference in the lives of

children. (Vol. 33Tp. 4592-4593, 4596-4597) The chaos and instability of the household

deprived Paul of safety, nurturance, structure, and limits. (Vol. 33Tp. 4612) Had intervention

occurred when he was middle school age, his life outcome might have been different. (Vol.

33Tp. 4613)

       In April of 1980, Paul Ransom kicked his wife, 2½ year old son Paul, and newborn son

Jerome out of the house. They were exposed to the elements for hours until they reached the

home of a friend. Within days of the incident, Jerome, twenty-two days old, died. An autopsy

was ordered as two of Paul Ransom‟s children had died at an early age for unexplained reasons.

The autopsy revealed that Jerome died of bacterial pneumonia The family attributed Jerome‟s

death to Paul Ransom‟s actions. Although Paul Cummings was very young, he realized his

brother was gone and asked for him after his death. (Vol. 33Tp. 4637-4638, 4641)

       Jerome‟s death presaged the violent acts Paul Cummings witnessed and personally

endured as a child. (Vol. 33Tp. 4612) Paul Ransom‟s violence, abuse, and alcoholism, and

Pearline Ransom‟s inability to leave him or follow through on criminal charges lodged against
                                           6


him became the central reality of Paul Cummings‟ life. (Vol. 27p. 3761, 3764, 3766; Vol. 28Tp.

3834; 33Tp. 4655) While Pearline Ransom had the choice to leave every time she was battered,

her children had no options. The extended family feared Paul Ransom, as did the police. (Vol.

33Tp. 4571, 4581) In the culture of his extended family, people did not interfere when things

went on between a husband and wife or ask questions when they saw children with bruises and

scars. (Vol. 33Tp. 4594, 4659) At that time, neither the Department of Social Services, police,

nor prosecutors aggressively pursued cases of domestic violence or removed children from the

home.    (Vol. 33Tp. 4565-4566, 4570, 4592-4593, 4674)           Life within the family was

unimaginable. (Vol. 33Tp. 4596, 4658) Of the three surviving children, Paul was singled out for

abuse and consequently endured a chaotic and unstable childhood. (Vol. 29Tp. 3963; Vol. 33Tp.

4611, 4673)

        On 8 August 1991, Ms. Ransom went to work at a poultry plant in Raeford. Her

husband, who also worked at the plant, did not show up for his job. She got off work at 11:00

p.m., picked up her children at the babysitter‟s, and went home. When Mr. Ransom arrived, he

cursed her and called her a whore. He locked the children outside and told them he would kill

them if they called 911. (Vol. 27Tp. 3711; Vol. 28Tp. 3876) He beat his wife for three to four

hours as the children screamed outside. When he passed out, Ms. Ransom left the trailer and

spent the night with her children in the woods. In the morning, they walked seven miles to her

mother‟s house. She was treated for injuries at Cape Fear Medical Center. (Vol. 27Tp. 3711-

3712) Although Ms. Ransom pressed charges against her husband, he was found not guilty.

(Vol. 27Tp. 3763)

        In 1991, the family went to a Christmas Eve party at Ms. Ransom‟s brother‟s house. Mr.

Ransom and his brother-in-law got into a fight in front of the children. Ransom slashed his
                                           7


brother-in-law‟s neck with a knife. (Vol. 27Tp. 3713) The brother-in-law, who was terrified of

Ransom, dropped charges. (Vol. 28Tp. 3765, 3802)

       On 7 June 1993, Paul was playing with the Rockholt family in Raeford when Mr.

Rockholt broke his neck diving into a lake behind his house. Paul and Mr. Rockholt‟s son pulled

him to the shore while others called 911. (Vol. 33Tp. 4586-4587) Mr. Rockholt survived as a

result of their actions. (Vol. 33Tp. 4588) In recognition of his “courageous action without

regard to personal safety to save a human life,” Paul received the 1994 Woodmen of the World

lifesaver plaque. (Vol. 33Tp. 4557) His mother, brother, and sister attended the award banquet.

Paul Ransom did not attend because he did not want to go. (Vol. 34Tp. 4697-4698) At about

this time, Ms. Ransom began living with her mother to escape the violence at home and obtained

a no trespass order to prevent Paul Ransom from coming onto her mother‟s property. Mr.

Ransom went to his mother-in-law‟s house and fired a gun into the house, grazing his wife‟s

great-aunt on the face. Following that incident, Pearline was no longer welcome in her mother‟s

home and had no place to go to escape the violence. (Vol. 33Tp. 4652-4653)

       On 16 June 1993, the family attended a birthday party. When Mr. Ransom arrived at the

house, he fired a gun near his wife‟s head and pistol whipped her. Paul called 911. Ms. Ransom

was treated for head gashes from the pistol whipping. (Vol. 27Tp. 3714-3715)

       On 2 August 1993, Mr. Ransom came home drunk, hit his wife, and slung her to the

floor. Paul tried to help his mother and called 911. She was treated at Cape Fear Medical

Center. (Vol. 27Tp. 3715-3716) Ransom was found not guilty in charges stemming from the

incident. (Vol. 27Tp. 3765)

       In September, 1993, Ms. Ransom worked as a school bus driver. On 9 September, when

she got off the school bus at the school parking lot after the morning run, she saw her husband
                                            8


sitting in a car with a gun. He grabbed her and put her in the car. Bystanders called 911. Ms.

Ransom took out a restraining order against her husband. (Vol. 27Tp. 3716-3717) On 2

November 1993, Mr. Ransom violated the restraining order and beat his wife in front of the

children. (Vol. 27Tp. 3717)

       On 19 June 1994, Ms. Ransom was involved in an automobile accident in her husband‟s

truck. Mr. Ransom beat her in front of Paul for wrecking the truck. She was treated at Cape

Fear Memorial Hospital and lodged assault on a female, assault with a gun, and communicating

threats charges against him. (Vol. 27Tp. 3718-3720)

       In late January, 1995, the Ransoms briefly separated and Paul Ransom moved out of the

house. (Vol. 28Tp. 3812) He returned home on 4 February 1995, after spending the night at a

bar. When he found out that the kerosene heater had run out of fuel, he grabbed Paul out of bed

and beat him. Ms. Ransom asked her husband to stop hitting Paul. He began beating her

instead. (Vol. 27Tp. 3720) Paul‟s sister called 911. Mr. Ransom, who had been drinking and

smelled of alcohol, refused to allow police to enter the house. When he finally admitted the

police, they found Paul huddled in bed with the covers over his head. He had bruises and red

marks on his face, neck, chest, and back. His eyes were nearly swollen shut, his nose was

cracked, his lips were busted, and his neck bore marks of having been choked and scratched.

(Vol. 27Tp. 3724; Vol. 28Tp. 3812; Vol. 33Tp. 4653) He told social worker Julie Okrie that his

father hit him over one hundred times. (Vol. 28Tp. 3814) His face was so badly beaten that his

cousin could not even recognize him. (Vol. 28Tp. 3881)

       Ransom was arrested on child abuse charges. When Ms. Okrie interviewed him in jail,

he asked if his son was dead. He told Ms. Okrie that if Paul was not dead, he had nothing to say.

(Vol. 28Tp. 3816) The Department of Social Services removed Paul from the home after Ms.
                                            9


Ransom signed a protection plan agreeing to live apart from her husband and to not allow her

husband to have any contact with his children. Social Services placed Paul at his grandmother‟s

house. (Vol. 27Tp. 3724; Vol. 28Tp. 3813)        Ransom bonded out of jail two days later and

returned to the family home. He and his wife told Social Services that he had changed. (Vol.

28Tp. 3817) Two weeks later, however, Ransom pulled a knife on his wife. (Vol. 28Tp. 3817-

3818)

        Social Services concluded that the 4 February 1995 incident emotionally damaged Paul.

(Vol. 28Tp. 3820) Ms. Okrie noted that Pearline Ransom‟s “level of care and supervision has

repeatedly exposed Paul to harm.” She further noted that Ransom‟s “[p]hysical discipline [was]

escalating in severity, violence/sadistic tendencies evident.” (Vol. 28Tp. 3820-3821)

        On 23 February 1995, Ms. Ransom signed an intervention plan with Social Services. She

recognized that she and her husband needed mental health counseling. Mr. Ransom refused to

sign the plan and was not even present when social worker Donnie Bowen visited the home on

27 February. (Vol. 28Tp. 3830-3832) Ms. Ransom told Mr. Bowen that she had taught her

children to call the Sheriff‟s Department when they saw her husband beating her. She said that

she loved her husband so much that she could not leave him. (Vol. 28Tp. 3834)

        Mr. Cummings was just starting high school when he was removed from the home and

placed with his grandmother. No male was in the home, as Paul‟s grandfather was on North

Carolina‟s death row. (Vol. 27Tp. 3725; Vol. 33Tp. 4606) The home was located in a very rural

area of Hoke County. Paul‟s grandmother was chronically ill, had no transportation, and had a

difficult time offering the support Paul needed as an adolescent. (Vol. 33Tp. 4655) Paul, who

had been banished from his home for being beaten to a pulp, missed his family and wanted to

return home. (Vol. 28Tp. 3837, 3839; Vol. 33Tp. 4653) Mr. Bowen told Ms. Ransom not to
                                            10


allow Paul to come home because the home was unsafe. (Vol. 28Tp. 3840) Paul began acting

out and skipped school, got suspended, used profanity, smoked marijuana, and got into fights.

(Vol. 27Tp. 3726; Vol. 33Tp. 4654) Before that, he had been a hard-working student who

earned good grades, was well-liked by his teachers and fellow students, had been very respectful

in school, did not have problems with teachers or fellow students, and did not get into fights.

(Vol. 27p. 3738-3739, 3742; Vol. 28Tp. 3880; Vol. 33Tp. 4499, 4501, 4648-4649) By 10 April,

Paul moved in with his uncle, as he was barely attending classes. (Vol. 28Tp. 3841)

        On 19 April 1995, Ransom was placed on probation for misdemeanor child abuse. Six

days later, on 25 April, he violated probation by hitting his wife in the face with a picture frame

and beating her about the face and body. (Vol. 29Tp. 4045-4046) Two days later, on 27 April,

Ms. Ransom reported that her husband scratched her face, beat her in the chest, and possibly

punctured her eardrum as she tried to stop him from beating their daughter. (Vol. 28Tp. 3850)

Although a probation violation report was filed, Ransom was not arrested. (Vol. 29Tp. 4045-

4047)

        Ms. Ransom told social worker Donnie Bowen on 27 April 1995 that she was through

with her husband. (Vol. 28Tp. 3850) Mr. Bowen doubted her sincerity, as she had said that

many times before. (Vol. 28Tp. 3851) He was shocked by her appearance, as her entire face

was scratched and her eyes and head were swollen. Mr. Bowen encouraged her to seek medical

attention and file charges against her husband. He asked how much more of this she was willing

to make her children endure. (Vol. 28Tp. 3852) He felt that Ms. Ransom was both very scared

and protective of her husband. (Vol. 28Tp. 3854)

        In early May 1995, Ms. Ransom told Mr. Bowen that her husband had moved to

Wilmington and Paul had quit school. (Vol. 28Tp. 3856) Mr. Bowen told her that Paul had to
                                           11


attend school until he turned 16. (Vol. 28Tp. 3857) On 9 May 1995, Ms. Ransom told Mr.

Bowen that Paul wanted to live with his aunt, uncle, and father in Wilmington. Although she

strongly disapproved of the plan, she did not feel she could stop Paul from moving there. Mr.

Bowen advised her to let Paul move to Wilmington and then file a petition alleging that he was a

runaway. (Vol. 28Tp. 3958-3859) When Mr. Bowen visited Ms. Ransom on 12 May, she told

him that she planned to visit her husband in Wilmington and leave Paul with him. Mr. Bowen

told her she should not put Paul in a position of having to defend himself against his father.

(Vol. 28Tp. 3859)

       Ms. Ransom‟s mother, Pauline Cummings, told Mr. Bowen on 17 May that she knew her

daughter would move to Wilmington as she could not stay away from her husband and went

crazy without him. Ms. Cummings believed that Ransom would eventually kill Pearline. (Vol.

28Tp. 3862) On 25 May, Pearline told Mr. Bowen that she was leaving to live with her husband.

Mr. Bowen transferred to case to Brunswick County Department of Social Services, but they

never received the referral. (Vol. 28Tp. 3864-3865)

       Sometime after their arrival in the Wilmington area, when they lived in Castle Hayne,

Ransom hit his wife until she passed out. Paul tried to help her. Ransom jumped on his son,

grabbed his head, and hit it into the wall multiple times. Ransom also choked and punched his

son. (Vol. 28Tp. 3875-3876) On another occasion, Ransom pulled a gun on his son. Paul was

afraid to make out a warrant against his father. (Vol. 33Tp. 4571) The family told Sheriff

Meadows that Ransom had repeatedly threatened to kill his wife and children if he was arrested

and had killed the family dog. Batterers kill animals to show their victims that the same thing

could happen to them. (Vol. 33Tp. 4570-4571)
                                             12


       On 26 May 1996, Ransom dragged his wife on her knees from one end of the trailer to

the other in front of Paul. (Vol. 27Tp. 3726) On 16 May 1997, Mr. Ransom was arrested for

giving alcohol to a minor, his son Paul. (Vol. 27Tp. 3727)

       On 12 February 1998, Paul and his brother were playing a video game on the living room

television. Ransom, angry that he could not watch television, fired a gun at Paul and beat his

wife. Paul ran to a neighbor‟s house and called 911. (Vol. 27Tp. 3728) That was not the first

time Ransom had pulled a gun on his son. (Vol. 27Tp. 3730-3731)

       On 6 November 1998, Ransom, in front of Paul, hit his wife and grabbed her by the

throat. Paul tried to help his mother. In tears, he went to their neighbor Jane Head‟s trailer to get

help. (Vol. 27Tp. 3733-3735) Ransom was arrested for assault on a female, released on bond,

and eventually given a prayer for judgment continued. (Vol. 27Tp. 3751-3752)

       In December 1999, Ransom was referred to Family Services of Lower Cape Fear for

anger management treatment after again being charged with assault on a female. (Vol. 28Tp.

3901, 3903) He was admitted into the program based on the information he provided. When

therapist Gloria Wright later saw the extent of his criminal history and social services

interventions, she concluded that she would have refused his admission into therapy and referred

him for a substance abuse assessment and psychological evaluation. (Vol. 28Tp. 3907-3908)

       Ms. Ransom spent Christmas Day, 2001 in Raeford. When she returned home, her

husband and son were drinking. Ransom was angry that she had been gone so long and hit his

wife in the head. Paul called 911. The police did not arrest Ransom as Ms. Ransom had no

visible injuries. After the police left, Ransom beat his wife until she passed out. Paul tried to get

his father off of his mother. Ransom was arrested for assault on a female, but served no jail time

on the charge. (Vol. 27Tp. 3753-3757)
                                           13


       Following the Christmas beating, Ms. Ransom got another restraining order against her

husband. She called 911 several times to report that her husband was communicating threats.

Paul moved out in early 2002, but returned in July 2002 to protect his mother because his father

had moved back in. (Vol. 27Tp. 3759-3760) On 31 August 2002, Mr. Cummings took a cab to

the trailer park. He told driver Eula Cauldwell to stop at the trailer across from his home. (Vol.

32Tp. 4418-4419) When Ms. Cauldwell stopped the cab, Mr. Cummings slid over in back of

her, put a knife or razor blade to her neck, and demanded money. (Vol. 32Tp. 4424) Mr.

Cummings grabbed the money on Ms. Cauldwell‟s clipboard, jumped out of the cab, and ran

through the woods. (Vol. 32Tp. 4425)

       Jane Head, the neighbor to whom Paul had gone for help in the past, was concerned about

Paul and urged his mother to get help for him. (Vol. 21Tp. 2308; Vol. 27Tp. 3663) Pearline

asked Ms. Head to hold some of her belongings, such as her jewelry, because her sons were

stealing everything she had to buy drugs. (Vol. 21Tp. 2440) In the early fall of 2002, Ms.

Ransom took Paul to the Wilmington Treatment Center to get help for drug and alcohol abuse.

Mr. Ransom was supposed to take Paul back to complete the paperwork involved, but failed to

ever do so. (Vol. 28Tp. 3798-3799)

       By 4 October 2002, Ransom had thrown Paul out of the family trailer. He began living in

an abandoned trailer next door with no heat, water, or furniture. On 4 October, he went to his

family‟s trailer at 9:00 or 9:30 a.m. (Vol. 27Tp. 3667) His mother gave him $10 and took him

to a grocery store to buy something to eat. Instead, Mr. Cummings bought three twenty-two

ounce cans of beer, a pack of cigarettes, and a soda. Upon returning home, Mr. Cummings drank

one beer and opened a second by 10:30 or 11:00 a.m. (Vol. 27Tp. 3669-3670) Ms. Ransom saw

a car drive up. Paul went up to the car, put his hand through the window, and then took off into
                                           14


the woods behind the trailer. He had bought crack cocaine. (Vol. 27Tp. 3670) Mr. Cummings

later told forensic toxicologist Brian McMillen that he started smoking crack cocaine at about

12:30 p.m. and smoked twenty to thirty times over the course of the afternoon. He also crumbled

crack cocaine into marijuana and smoked it. (Vol. Mp. 67) When Ms. Ransom saw Paul again

at 3:00 or 3:30 p.m., his eyes were glassy and he was pacing. She noticed that his third can of

beer and a six pack of Budweiser were no longer in the refrigerator. She and her son Billy left

about 4:20 for Raeford. (Vol. 27Tp. 3671-3672) Mr. Cummings did not go with them as he

would have had to stop smoking crack. (Vol. 33Tp. 4675-4676)

       Between 4:30 and 4:55 p.m., Mr. Cummings went to Ms. Head‟s trailer to get cigarettes

or a ride to the store to buy cigarettes. (Vol. 20Tp. 2093, 2107; Vol. 29Tp. 3988; Vol. Mp. 61)

Mr. Cummings had been in Ms. Head‟s trailer many times before; it had been a sanctuary to

escape his father‟s violence. He viewed Ms. Head as a benevolent and caring person, who had

often given him money when he needed it. (Vol. 29Tp. 3990, 4019) In the past, he did yard

work for her and helped her with vacuuming, cleaning her trailer, and taking out her trash. (Vol.

27Tp. 3660-3661)

       Mr. Cummings later told defense and state-employed mental health professionals that

Ms. Head left him in the living room while she went to the bathroom. When she left the room,

he saw her purse. He thought about robbing her to get money for cocaine. (Vol. 29Tp. 3989;

Vol. Mp. 61; Vol. 33Tp. 4676) He then saw a small knife in the kitchen sink drain board and the

thought entered his mind to kill her. (Vol. 29Tp. 3992; Vol. Mp. 61) When Ms. Head came out

of the bathroom, he stabbed her sixteen times in the face, head, neck, back, shoulder, and chest.

(Vol. 26Tp. 3546; Vol. 33Tp. 4677; Vol. 30Tp. 4115-4116) The killing evidenced a highly

agitated, disordered, disorganized, out of control state of mind. (Vol. 29Tp. 3959, 4034, 4037)
                                           15


One wound severed Ms. Head‟s jugular vein and one caused her left lung to collapse. (Vol.

26Tp. 3547) The pathologist who performed the autopsy opined that Ms. Head would have been

aware that she was dying and that death occurred within ten minutes of infliction of the neck and

chest wounds. (Vol. 26Tp. 3538-3539, 3556, 3558)

       Mr. Cummings left the trailer through the rear door, dropped Ms. Head‟s kitchen knife

below a window at his parent‟s trailer, and then broke into the trailer. (Vol. 21Tp. 2522, 2524;

Vol. 23Tp. 2821; Vol. 29Tp. 4001) He left in Ms. Head‟s minivan. (Vol. 25Tp. 3347, 3350) At

5:01 and 5:02 p.m., Mr. Cummings withdrew $100 and $300 from Ms. Head‟s checking account

using her ATM card. (Vol. 21Tp. 2494; Vol. 22Tp. 2504) He made a few more stops and then

drove to Leland to buy more crack cocaine. (Vol. 29Tp. 4009; Vol. 30Tp. 4127-4128)

       Ms. Head‟s daughter and son-in-law Joni and Bill Carson arrived at the trailer at 4:55

p.m. (Vol. 20Tp. 2107) They were surprised that Ms. Head‟s van was not parked in front of her

trailer. (Vol. 20Tp. 2116) Ms. Carson found her mother lying face down in the bedroom. (Vol.

20Tp. 2196-2197) She performed CPR, but her mother had already died. (Vol. 20Tp. 2148,

2204) Mr. Carson called Joni‟s brother Charles Head, who arrived with his girlfriend Cathy

Abernathy. (Vol. 21Tp. 2299, 2390-2391) The four discussed what might have happened. Ms.

Abernathy said, “I know who did it, that son of a bitch who lives right there did it.” She pointed

to the Ransoms‟ trailer.    (Vol. 21Tp. 2432)     Ms. Abernathy testified that she knew Mr.

Cummings killed Ms. Head because a week before Ms. Head told her that Mr. Cummings was

banging on her door. (Vol. 21Tp. 2433) Ms. Head had also told her daughter in July that she

knew that Mr. Cummings had broken into her trailer and stolen her television set. (Vol. 21Tp.

2302-2303)    Although police took a report on the July incident, they did not arrest Mr.

Cummings for the break-in or larceny. (Vol. 29Tp. 4067, 4070, 4071)
                                           16


       Paul Cummings‟ use of crack cocaine had escalated for several years to the point where it

dominated his daily activity. (Vol. 29Tp. 4018; Vol. 30Tp. 4147) Severely-addicted crack

cocaine addicts under the influence of crack become single-focused on getting more crack, as

once the crack metabolizes in their system, they experience an intense craving for more and will

do just about anything to get it. (Vol. 29Tp. 4008-4009; Vol. 33Tp. 4616-4617) Long term

crack use damages the same dopamine paths in the brain that become disordered in

schizophrenia. (Vol. 33Tp. 4619) Drinking alcohol on top of crack acts as a disinhibitor that

affects judgment. (Vol. 29Tp. 4018) Forensic toxicologist Brian McMillen extrapolated from

Mr. Cummings‟ reported beer consumption that his blood alcohol level was .175 at the time of

the homicide.    (Vol. Mp. 25-28) When coupled with the crack cocaine use that day, Dr.

McMillen concluded that Mr. Cummings was in an extremely intoxicated state when he entered

Ms. Head‟s home. His actions would have been reflexive and his thoughts fixated. (Vol. Mp.

33, 37) Clinical psychologist James Hilkey opined that Mr. Cummings‟ ability to deliberate and

think about the consequences of his actions were impaired not only by the cocaine and alcohol,

but by severe psychological disturbances leading to impulsivity, poor judgment, and lack of

cognitive controls. In Dr. Hilkey‟s opinion, the killing was impulsive and poorly controlled, as

Mr. Cummings lacked the specific intent to adequately plan and consider the consequences of his

behavior. (Vol. 29Tp. 3958, 3996) Psychiatrist Moira Artigues concluded that

                on the day of the incident, Paul Cummings‟ behavior and judgment
                were influenced by the impairment of intoxication, craving for
                cocaine, and posttraumatic stress disorder. The events that took
                place were the unintended result of the combination of these
                influences. (Vol. 33Tp. 4680)

       Dr. Hilkey diagnosed Mr. Cummings as suffering from the Diagnostic and Statistical

Manual of Mental Disorders-IV Axis I disorders of alcohol, cannabis, and cocaine dependence,
                                            17


alcohol and cocaine intoxication at the time of the homicide, dysthymia disorder, and post-

traumatic stress disorder, and Axis II disorders of borderline personality and dependent

personality disorder.   (Vol. 29Tp. 3946, 3950-3951, 3955)          Dr. Artigues diagnosed Mr.

Cummings as suffering from cocaine dependence, alcohol dependence, cannabis dependence,

and post-traumatic stress disorder. She did not render an Axis II diagnosis and did not disagree

with Dr. Hilkey‟s Axis II diagnoses. (Vol. 33Tp. 4615, 4624)

       Mr. Cummings‟ dysthymia, or ongoing depression, began in childhood and became more

overt and acute following the 1995 beating by his father. It manifested itself in suicidal ideation

and suicidal gestures, crying, lack of energy, and recurring troubling thoughts of traumatic abuse.

(Vol. 29Tp. 3950-3951, 4026) His borderline personality disorder, which is one of the more

severe types of personality disorders, was characterized by pervasive instability in interpersonal

relationships, impulsiveness, and a very fragile self-image resulting from inadequate nurturing

and care. (Vol. 29Tp. 3951-3952) As a child, he had worked hard to please and engender the

confidence of those who actually mistreated him.          (Vol. 29Tp. 3953)      Mr. Cummings‟

psychological testing documented distortions in perceiving reality.       Persons suffering from

borderline personality disorder can have very brief psychotic-like episodes. (Vol. 29Tp. 3955)

       Mr. Cummings was genetically predisposed to become vulnerable to alcohol and cocaine.

(Vol. 29Tp. 3962; Vol. 33Tp. 4620) Male children of alcoholic fathers are five times more likely

to become involved in drugs and alcohol than male children of non-alcoholics. (Vol. 29Tp.

3962) It is also more common for children with post-traumatic stress disorder to grow up to

become drug-addicted adults, as they seek relief from their emotional difficulties through self-

medication. (Vol. 33Tp. 4623-4624) Dr. Artigues testified,

               Paul Cummings is the victim of multi-generational physical and
               emotional abuse, domestic violence and terror. These familial
                                           18


               conditions generated depression and a severe anxiety disorder
               known clinically as PTSD and set in motion a chain of cause and
               effect events which ultimately resulted in cocaine addiction, in
               particular, and the violent and tragic events which occurred in his
               pursuit of this substance to which he was addicted. (Vol. 33Tp.
               4635)

       Wilmington police called Ms. Ransom on the evening of 4 October and told her that Ms.

Head had been killed. (Vol. 27Tp. 3672-3673) Ms. Ransom returned to Wilmington the next

morning and saw her son‟s photograph in the newspaper as a suspect in Ms. Head‟s killing.

(Vol. 27Tp. 3674) Between 8:00 and 8:30 p.m. on the evening of 5 October, Billy told her that

Paul was in the abandoned trailer next door. At Ms. Ransom‟s direction, Billy brought Paul to

the family trailer and then went to get his father, who was drinking in the trailer park with a

friend. (Vol. 27Tp. 3675, 3699) Mr. Cummings was crying and his eyes were glassy. He asked

his mother to call 911. (Vol. 27Tp. 3699-3700) He looked strung out. (Vol. 27Tp. 3874) When

Mr. Ransom arrived at the trailer, he immediately pulled out a knife and began fighting with his

son. Ms. Ransom called 911. (Vol. 27Tp. 3700-3701)

       When police arrived, they immediately noted that Ransom was intoxicated. (Vol. 23Tp.

2760, 2904) He cursed at them, yelling “Fuck you, fuck the God damn cops. You mother

fuckers beat my ass.” (Vol. 23Tp. 2905) Police arrested Mr. Cummings for the homicide and

threatened to arrest Ransom for disorderly conduct.          (Vol. 23Tp. 2761, 2896, 2904)   Mr.

Cummings was crying. He received medical treatment for injuries sustained in the fight and was

transported to the police station. (Vol. 23Tp. 2761, 2907)

       Richard Marshburn, Jr., a jail minister in Wilmington, visited Mr. Cummings every week

for months while Mr. Cummings awaited trial. (Vol. 33Tp. 4470, 4477) Reverend Marshburn

observed Mr. Cummings‟ remorse over Ms. Head‟s death. (Vol. 33Tp. 4479) In Reverend

Marshburn‟s opinion, Mr. Cummings was one of the very few inmates who sincerely adopted
                                            19


Christ while in jail. (Vol. 33Tp. 4479, 4482) Mr. Cummings told him, “No matter what, if I die,

I‟m going to serve Jesus for the peace that I have now and that mind to live right that He has

given me.” (Vol. 33Tp. 4483) Jane Cherry, who lived next to the Mobile Home Park and had

known Paul since he was a child, corresponded with him after his arrest. She too saw a change

in him and felt that Christ had entered into his life. (Vol. 33Tp. 4493-4495)

       Mr. Cummings‟ cousin Carolyn Locklear, who had not been close to him while they were

growing up, was surprised when she saw him in jail, as he did not seem to be the person she had

heard so many bad things about. (Vol. 33Tp. 4485, 4487) She had doubts when she heard he

had been saved, but could tell in talking to him that it was sincere. They started writing weekly.

(Vol. 33Tp. 4487) Although Ms. Locklear was angry that no one had taken the time to structure

Mr. Cummings‟ life as he was growing up, Mr. Cummings never blamed anyone. He was only

full of regret that he was not then the person he became in jail.         Ms. Locklear read Mr.

Cummings‟ letters to adults and teenagers at her church, as he tried in his letters to persuade

others to take a higher road than he had taken. (Vol. 33Tp. 4489-4490)

       Mr. Cummings was transferred to Lanesboro Correctional Facility while awaiting trial.

Unlike other inmates, Mr. Cummings got a job. He was a productive kitchen employee who did

all that was asked of him. (Vol. 33Tp. 4526, 4528) He worked his way up from washing pots to

cleaning tables in the dining hall. (Vol. 33Tp. 4529-4530) When in the New Hanover County

Jail for pre-trial motions, he did not cause any problems. (Vol. 33Tp. 4543) During trial, Mr.

Cummings was polite and respectful to Sheriff‟s Deputy Danny Long. Deputy Long testified

that the difference in Mr. Cummings‟ attitude and those of other inmates was like night and day.

(Vol. 33Tp. 4548)
                                           20


        In talking with Dr. Artigues, Mr. Cummings was very tearful about Ms. Head‟s death.

He said that he really loved Jane Head and wished that he could change places with her and die

so that she could come back. He expressed a lot of remorse for what happened. (Vol. 33Tp.

4636) He told Dr. Artigues that his cocaine addiction had been out of control. (Vol. 33Tp.

4642-4643) A photograph of Mr. Cummings at the time of his arrest showed a very thin young

man with a lined face and the hopeless look of a drug addict. (Vol. 33Tp. 4643) Mr. Cummings

told Dr. Artigues that he could “relax” in jail. It was the first time he felt safe. (Vol. 33Tp.

4660)

        To his surprise, Lt. Billy Goodson, the Chief of Detectives of the Carolina Beach Police

Department, was called for jury duty in this case. (Vol. 2WTp. 285; Vol. 5WTp. 1140) Lt.

Goodson was the lead investigator on two homicide cases tried by Ben David, the lead

prosecutor in this case. (Vol. 2WTp. 376; 5WTp. 1135) Lt. Goodson placed a great deal of

confidence in Mr. David and had sought Mr. David‟s opinion on whether to proceed with

criminal charges in cases he investigated. (Vol. 5WTp. 1128-1129) Lt. Goodson had also

consulted on his cases with Dru Lewis, the second-chair prosecutor, and with other assistant

district attorneys and relied on their judgment. (Vol. 2WTp. 285; Vol. 5WTp. 1127, 1138-1140,

1158-1162, 1213-1214) He had worked directly with District Attorney John Carriker. (Vol.

5WTp. 1130) Lt. Goodson had conducted joint police investigations with members of the

Wilmington Police Department who were involved in the investigation of this case. (Vol.

5WTp. 1137, 1153, 1155) Lt. Goodson had also served as the lead investigator on a capital case

that went to the penalty phase. (Vol. 5WTp. 1193)

        Although he lived seventy-five yards from lead defense counsel Richard Miller, he had

never been to Mr. Miller‟s home. (Vol. 5WTp. 426) He did not think it would be difficult to
                                            21


pronounce a death sentence and see Mr. Miller afterward. (Vol. 2WTp. 427)

       Lt. Goodson stated in voir dire that he attached a great deal of credibility to law

enforcement witnesses since he considered himself a law enforcement officer twenty-four hours

every day and felt close to and trusted the police officers with whom he served. (Vol. 5WTp.

1215) He stated that he probably would attribute more credibility to law enforcement officers,

due to their training, experience, and expertise, than to civilian witnesses. (Vol. 5WTp. 1216)

He trusted law enforcement, since he and they were part of the same team. (Vol. 5WTp. 1217)

Having a lot of police officers as witnesses in a case equated in his mind with the prosecution

having a strong case. (Vol. 5WTp. 1218)

       Lt. Goodson said that presuming Mr. Cummings innocent equated with being on a fence

about guilt. He stated he would start “even-steven at sentencing.” (Vol. 5WTp. 1219)

       Lt. Goodson had supported capital punishment ever since he “was old enough to

understand logic.” (Vol. 2WTp. 375-376) In his view, society could not be controlled without

the death penalty. “[A]bsolute chaos” would “open up.” (Vol. 5WTp. 1112) He stated that

“obviously” there would be a basis to impose death in a homicide that occurred in the course of a

robbery. (Vol. 5WTp. 1114)

       After stating that he saw the “logic” of life without parole, Lt. Goodson offered to

“shorten this up.” He stated:

               I‟m going to have a great propensity to scrutinize the mitigating
               circumstances that Mr. Miller alluded to yesterday in his voir dire
               of some of the other counselors [sic]. And based on that, I will
               have a natural inclination to look at some of those mitigating
               circumstances in a little more detail than perhaps others may or
               may not. And I can say that unless I see a mitigating circumstance
               that is a non self-induced condition, then I‟m not inclined to give a
               lot of weight to it. … I‟m saying that it‟s not an excuse, as some
               people think. It‟s an explanation of why things occurred. And
               because of the nature of the investigations that I have done over the
                                            22


               past umpteen years, that an explanation in some cases are [sic] a
               logical mitigating circumstance. … I can say in my personal
               viewpoint that mental illness is a condition that takes out the
               rationalization that you and I grew up with, from right and wrong.
               Short of that, there is not a whole lot on that list that I would
               consider. (Vol. 5WTp. 1116-1117)

        As a result of his decades of police experience, Lt. Goodson did not believe that matters

such as drug use or intoxication were a “justification, rationalization, excuse, or whatever label

one wants to attach to it.” (Vol. 5WTp. 1199-1200) He viewed such matters as a “cop-out.”

(Vol. 5WTp. 1143) He explained that

               short of mental illness, medically defined attributed mental illness,
               that would rationally justify our actions, I don‟t personally see any
               other type of mitigating circumstances that can justify the taking of
               a life. And again, as was alluded to in your presentations
               yesterday, there may be some other issues that you‟re going to be
               broaching that – may cause for consideration of mitigation.
               Having investigated numerous cases of that, and listening to people
               everyday…[c]ases where that type of explanation as to why crimes
               were perpetrated. … Domestic violence, drug use, broken homes –
               learned violence. I don‟t find those as acceptable mitigating
               circumstances for someone having committed a homicide. (Vol.
               5WTp. 1118-1119)

        Lt. Goodson stated that his viewpoint “will obviously have an affect” on the way he

would hear guilt phase evidence. (Vol. 5WTp. 1141) He stated he “will try to be as objective as

I can to the mitigating circumstances surrounding this particular case, but I think I‟m going to

have a very limited window in which things that I would consider that would negate the death

penalty.” (Vol. 5WTp. 1141-1142) Before the discussion of mitigation was broached in voir

dire, he sat

               in the middle of the fence, you know, either way I had no
               preponderance of decision or any opinion one way or the other,
               would have been a very fair – I think I would have been fair. But
               I‟m just honest with you with regard to what I call explanations of
               why things occur. (Vol. 5TWp. 1142)
                                             23


       Lt. Goodson stated that he had significant concerns about sitting on this case having

“heard the defense‟s line of approach to this trial….” (Vol. 5WTp. 1144) His attitudes towards

defendants‟ histories caused no concern for him in his work as a law enforcement officer. He

acknowledged the distinction in having that attitude as a police officer versus having it as a juror.

(Vol. 5WTp. 1145) He stated that if he was told by the court to consider something, he would

consider it, but unless the defense offered something “that I maybe have not thought about,” “if it

wasn‟t something of a substantial nature, it wouldn‟t change my philosophy or attitude.” (Vol.

5WTp. 1146-1148)

       Kenneth Boston repeatedly told the court in voir dire that he would automatically vote

death if guilt of a premeditated murder was proven and automatically vote death if the State

proved that aggravating factors existed. (Vol. 14Tp. 734, 735, 736, 739, 778, 780, 782)

                                          ARGUMENT

       A.      DENIAL OF RIGHT TO FAIR AND IMPARTIAL JURY

       I.      THE TRIAL COURT’S DENIAL OF MR. CUMMINGS’
               CHALLENGE OF THE CHIEF OF DETECTIVES OF
               THE CAROLINA BEACH POLICE DEPARTMENT,
               WHO WAS UNABLE TO BE A FAIR AND IMPARTIAL
               JUROR IN THIS CAPITAL CASE, DEPRIVED MR.
               MR. CUMMINGS OF HIS RIGHTS TO DUE PROCESS
               OF LAW AND JURY TRIAL.

               Assignment of Error No. 4, Rp. 171
               Assignment of Error No. 6, Rp. 172

       Standard of Review:

       The denial of a challenge for cause is reviewed for abuse of discretion. State v. Trull, 349

N.C. 428, 441-442, 509 S.E.2d 178, 188 (1998), cert. denied, 528 U.S. 835, 120 S.Ct. 95, 145

L.Ed.2d 80 (1999).

       Argument:
                                          24


       A juror‟s assurances of fairness carry little weight when the totality of the voir dire

examination reveals that the juror‟s views prevent him from impartially carrying out his duties

and following the law. Morgan v. Illinois, 504 U.S. 719, 735-736 and n.9, 112 S.Ct. 2222, 2233

and n.9, 119 L.Ed.2d 492, 506-507 and n.9 (1992); Irvin v. Dowd, 366 U.S. 717, 728, 81 S.Ct.

1639, 1645, 6 L.Ed.2d 751, 759 (1961); State v. Hightower, 331 N.C. 636, 641, 417 S.E.2d 237,

240 (1992). Every defendant in a criminal action has a constitutional right, protected by the

essential demands of fairness of the Fourteenth Amendment‟s Due Process Clause, to a trial

before a neutral and impartial jury. Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35

L.Ed.2d 46 (1973). The trial court denied Mr. Cummings‟ attempts to remove a potential juror

whose biases and prejudices, developed over decades of police work, rendered him unfit to serve

in this capital case. By denying Mr. Cummings‟ challenge for cause to Carolina Beach Police

Chief of Detectives Billy Goodson, forcing Mr. Cummings to utilize a peremptory challenge to

remove him (Vol. 5WTp. 1234), and denying the renewed challenge for cause when Mr.

Cummings exhausted all of his peremptory challenges (Vol. 16Tp. 1323, 1326, 1335-1336), the

court deprived Mr. Cummings of his opportunity to secure an impartial jury and his rights to a

fair trial, in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States

Constitution and Article I, §§18, 19, 23, 24, and 27 of the North Carolina Constitution. Mr.

Cummings‟ convictions must be reversed.

       A.     Lt. Goodson Could Not Impartially Consider Evidence in
              Defense or in Mitigation.

              A juror who reveals that he is unable to accept a particular defense
              or penalty recognized by law is prejudiced to such an extent that he
              can no longer be considered competent. One „who is unwilling to
              accept as a defense, if proved, that which the law recognizes as
              such‟ should be removed from the jury when challenged for cause.
              50 C.J.S., Juries §227, p. 974; see also: 112 A.L.R. 531.
                                            25


State v. Leonard, 296 N.C. 58, 62-63, 248 S.E.2d 853, 856 (1978) (erroneous denial of

challenges for cause to jurors unwilling to find defendant not guilty by reason of insanity even if

insanity proven). Lt. Goodson was unable to impartially consider evidence that would support

guilt phase defenses of intoxication and diminished capacity and support statutory and non-

statutory mitigating factors relating to mental state, intoxication, child abuse, and the effects of

domestic violence.     He should have been excused for cause, for he was “committed to

disregarding the evidence presented to [him]….” Id. at 63, 248 S.E.2d at 856.

       After stating that “obviously” a basis existed to impose the death penalty in a robbery

case that resulted in a homicide (Vol. 5WTp. 1114), Lt. Goodson asked if he could “shorten this

up.” (Vol. 5WTp. 1116) Lt. Goodson then explained that as to mitigation,

               I can say in my personal viewpoint that mental illness is a
               condition that takes out the rationalization that you and I grew up
               with, from right and wrong. Short of that, there is not a whole lot
               on that list that I would consider. (Vol. 5WTp. 1117)

He stated that he hoped everyone understood “how hard it is to say” that nothing short of a non-

self-induced mental condition qualified in his book as mitigation, but that was how he felt having

conducted criminal investigations “over the past umpteen years….” (Vol. 5WTp. 1117, 1120)

He understood from the questions asked of other jurors that the defense planned to present

evidence regarding “[d]omestic violence, drug use, broken homes…learned violence. I don‟t

find those as acceptable mitigating circumstances for someone having committed a homicide.”

(Vol. 5WTp. 1118-1119)

       Lt. Goodson understood that his inability “to put much credence to justifying or

rationalizing acts that we…have control over…will obviously have an affect” on the way he

would hear the guilt phase evidence. (Vol. 5WTp. 1141) He stated that he would also
                                            26


               be as objective as I can to listen to the mitigating circumstances
               surrounding this particular case, but I think I‟m going to have a
               very limited window in which things I would consider that would
               negate the death penalty. (Vol. 5WTp. 1141-1142)

        At that point in the examination, Lt. Goodson questioned his own competence to serve.

Having started from the viewpoint that nothing about himself disqualified him from sitting on

this case (Vol. 2WTp. 430), he had thought he “would have been a very fair – I think I would

have been fair.” (Vol. 5WTp. 1142) But having listened to the examination of other jurors and

then been called upon to verbalize his own viewpoints, he saw “absolutely” that his opinion

regarding mitigation was “the most significant sticking point as to whether or not [he felt he]

could be a fit juror in this case.” (Vol. 5WTp. 1142) He voiced his own “significant concern”

that his views would color his understanding of the evidence in this case. (Vol. 5WTp. 1143)

While he professed that he would follow the court‟s instructions “to the end,” (Vol. 5WTp. 1146)

he confessed that if the defense evidence “wasn‟t something of a substantial nature, it wouldn‟t

change my philosophy or attitude.” (Vol. 5WTp. 1147) Anything short of insanity was a “cop-

out.” (Vol. 5WTp. 1143) He was concerned that the defense would indeed present evidence of

intoxication or drug use, which were matters that he did not find to constitute a defense to a

crime or mitigating as to penalty. (Vol. 5WTp. 1199) He just did not “believe it is a justification

or rationalization or an excuse, whatever label one wants to attach to it.” (Vol. 5WTp. 1200)

The court thereupon sustained the State‟s objection to further questioning in this area, finding

further examination redundant as Lt. Goodson had made his views “pretty clear.” (Vol. 5WTp.

1208)

        While “a jury is not required to agree with a defendant that the evidence he proffers in

mitigation is, in fact, mitigating,” State v. Williams, 339 N.C. 1, 44, 452 S.E.2d 245, 270 (1994),

cert. denied, 516 U.S. 833, 116 S.Ct. 109, 133 L.Ed.2d 61 (1995), overruled on other grounds by
                                             27


State v. Warren, 347 N.C. 309, 492 S.E.2d 609 (1997), the Constitutions “oblige sentencers to

consider that information in determining the appropriate sentence.” Kansas v. Marsh, __ U.S.

__, 126 S.Ct. 2516, 2525, 165 L.Ed.2d 429, 442 (2006). Accord Morgan v. Illinois, supra, 504

U.S. at 736, 112 S.Ct. at 2233, 119 L.Ed.2d at 507. “Any juror to whom mitigating factors

are…irrelevant should be disqualified for cause, for that juror has formed an opinion concerning

the merits of the case without basis in the evidence developed at trial.” Id. at 739, 112 S.Ct. at

2235, 119 L.Ed.2d at 509.       The “fundamental respect for humanity underlying the Eighth

Amendment…requires consideration of the character and record of the individual offender and

the circumstances of the particular offense as a constitutionally indispensable part of the process

of inflicting the penalty of death.” Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct.

2978, 2991, 49 L.Ed.2d 944, 961 (1976). A juror who cannot consider evidence in mitigation

cannot sit on a capital case, for “[j]ust as the State may not by statute preclude the sentencer from

considering any mitigating factor, neither may the sentencer refuse to consider…any relevant

mitigating evidence.” Eddings v. Oklahoma, 455 U.S. 104, 113-114, 102 S.Ct. 869, 876-877, 71

L.Ed.2d 1, 10-11 (1982).

         A juror must also be able to consider evidence in defense of a criminal charge to return a

true verdict. “In the ultimate analysis, only the jury can strip a man of his liberty or his life. In

the language of Lord Coke, a juror must be as „indifferent as he stands unsworne.‟” Irvin v.

Dowd, supra, 366 U.S. at 722, 81 S.Ct. at 1642, 6 L.Ed.2d at 755. Lt. Goodson could not

consider any mental state evidence short of insanity in reaching a guilt phase verdict. “A fair

trial in a fair tribunal is a basic requirement of due process.” In re Murchison, 349 U.S. 133,

136, 75 S.Ct. 623, 625, 99 L.Ed. 942, 946 (1955). Lt. Goodson should have been dismissed for

cause.
                                             28


       B.      Lt. Goodson Was Unable to Afford Mr. Cummings the
               Presumption of Innocence or Presumption of Life.

       Lt. Goodson described himself as being “on a fence” when it came to guilt and

punishment, which he explained as meaning that he had not yet made a decision as to Mr.

Cummings‟ guilt or punishment. (Vol. 5WTp. 1218-1219) When asked if he saw a difference

between “being on a fence as opposed to presuming a person to be innocent,” he responded, “I

equate it to being the same.” Similarly, when asked if being on a fence meant he would “be

even-steven at sentencing,” Lt. Goodson responded affirmatively. (Vol. 5WTp. 1219) He saw

no distinction between presumptions in favor of a defendant and being “even-steven.” (Vol.

5WTp. 1220) In actuality, presumptions of innocence at the guilt phase and of life at the

sentencing phase operate quite differently than viewing the State and a criminal defendant as

entering the courtroom on an even plane. Lt. Goodson‟s inability to afford Mr. Cummings a true

presumption of innocence and life impaired his ability to serve as a juror in this case.

               „No matter how strongly the juror asserts that he could render a fair
               verdict,‟ where the juror was unable either to afford the defendant
               the presumption of innocence mandated in the law or where the
               prospective juror would not permit the presumption of innocence
               to follow the accused all during the trial, there exists a valid
               challenge for cause.

State v. Bozeman, 866 So.2d 1029, 1033 (La. App.), writ denied, 877 So.2d 141 (La. 2004),

quoting State v. Oliphant, 220 La. 489, 56 So.2d 846 (1952). In Bozeman, the juror asserted that

he had no difficulty presuming the defendant innocent at the outset of the trial, as he was “very

neutral.” When told he could not be neutral, but instead had to presume the defendant innocent,

the juror responded that he “probably” could do that. Although the juror stated that he could be

fair and impartial, the defendant‟s conviction was reversed for the failure to grant a defense
                                            29


challenge for cause, as “a prospective juror‟s declaration of fairness and neutrality does not

assure an understanding of the constitutional principle of the presumption of innocence.” Id.

       “The principle that there is a presumption of innocence in favor of the accused is the

undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the

administration of our criminal law.” United States v. Coffin, 156 U.S. 432, 453, 15 S.Ct. 394,

403, 39 L.Ed. 481, 491 (1895). The presumption “is an inaccurate, shorthand description of the

right of the accused to „remain inactive and secure, until the prosecution has taken up its burden

and produced evidence and effected persuasion….” Taylor v. Kentucky, 436 U.S. 478, 403 n.12,

98 S.Ct. 1930, 1934 n.12, 56 L.Ed.2d 468, 474 n.12 (1978). Not technically a presumption, as it

carries no evidentiary weight, it is “an „assumption‟ that is indulged in the absence of contrary

evidence.” Id.

       A juror in a criminal case cannot enter the courtroom assuming the parties to be “even-

steven.” If asked in voir dire what verdict or punishment he would vote for at that moment, the

only acceptable responses are “not guilty” and “life,” since the State, having not yet presented

any evidence, would not have met its burdens of proof. Perhaps due to his longstanding

experience in effecting arrests after having consulted with this prosecutor‟s office as to the

appropriate charges to be lodged, as well as his confidence in this prosecutor‟s office, Lt.

Goodson could not indulge the assumption that Mr. Cummings was innocent and not death-

worthy. Lt. Goodson should have been dismissed for cause.

       C.        Lt. Goodson Was Closely Aligned with the Prosecutor’s Office
                 And Repeatedly Stated That He Would Accord More Weight
                 To Police Officer Testimony.

       The “forces of law and order, which are most strongly represented by police officers, are

constantly at war with those who commit crimes and those charged with the commission of
                                            30


crimes.” State v. Lee, 292 N.C. 617, 625, 234 S.E.2d 574, 579 (1977). To assume that a police

officer, who relies on his fellow officers in waging that battle and on prosecutors to win that war,

will necessarily “assume the roles of impartiality is to ignore human reactions.” Id.

               It is inherent in the nature of police duties and the closeness with
               which such officers are identified with criminal procedures that
               questions regarding possible bias, fairness, prejudice or
               impermissible influence upon jury deliberations inevitably arise.
               These questions cannot be erased by a mere subjective, albeit
               sincere, declaration by the officer that he or she can be fair and
               impartial as to a defendant.

Hutcheson v. State, 246 Ga. 13, 13-14, 268 S.E.2d 643, 644 (1980).

       Lt. Goodson candidly admitted in voir dire that he relied on the judgment of the New

Hanover County District Attorney‟s Office in its charging decisions and had served as the lead

investigator on capital and non-capital homicide cases tried by the very Assistant District

Attorney prosecuting this case. (Vol. 5WTp. 1128-1129, 1138-1140, 1158-1162) He placed a

great deal of confidence in Assistant District Attorney David and been comfortable with Mr.

David‟s work “on his behalf.” (Vol. 5WTp. 1129) He had worked on joint police investigations

with members of the Wilmington Police Department scheduled to testify in this case. (Vol.

5WTp. 1137, 1153, 1155) Lt. Goodson was a police officer “twenty-four/seven” who was part

of the same team seeking a conviction and death sentence against Mr. Cummings. (Vol. 5WTp.

1215, 1217) Mr. David, who stated in front of the jury pool, “Lieutenant Goodson, I know you

pretty well,” (Vol. 2WTp. 424), could be assured that Lt. Goodson understood what the State

sought to prove in this case, since he had “seen…firsthand” Lt. Goodson‟s work on similar

charges. (Vol. 2TWp. 429)

       Lt. Goodson divined from the number of police officer witnesses that the State had a

strong case against Mr. Cummings. (Vol. 5WTp. 1218) He admitted that he probably would
                                              31


attribute more weight to law enforcement witnesses than to civilian witnesses because he trusted

law enforcement, who were members of his same team. (Vol. 5WTp. 1216-1217) He was

unable to even respond when asked if he could attribute the same degree of credibility to a

statement by a defendant as he would to a statement by a police officer. (Vol. 5WTp. 1223)

       Lt. Goodson‟s answers in voir dire clearly demonstrated his partiality toward the State.

“A juror is not impartial when one side must overcome a preconceived opinion in order to

prevail.” Hamilton v. State, 547 So.2d 630, 633 (Fla. 1989), quoted in Davis v. State, 656 So.2d

560, 561 (Fla. App. 1995). “When faced with a clear showing of actual partiality for police

testimony,” the trial court abuses its discretion in failing to dismiss the juror. United States v.

Amerson, 938 F.2d 116, 118 (8th Cir. 1991). A juror‟s mistaken belief “that his preference for

police testimony was entirely consistent with a „fair‟ decision,” Minch v. State, 934 P.2d 764,

769 (Alaska App. 1997), is not unlike the automatic death penalty jurors examined in Morgan v.

Illinois, supra, who found no inconsistency in their professed ability to follow the law and their

predisposition to automatically vote death. Neither possesses the indifference and impartiality

required under the United States and North Carolina Constitutions to serve. See Irvin v. Dowd,

supra, 366 U.S. at 722, 81 S.Ct. at 1642, 6 L.Ed.2d at 755; State v. Lee, supra, 292 N.C. at 625,

234 S.E.2d at 579. Where prosecutorial and law enforcement forces carry more weight at the

outset of a case, it is “not reasonable for the trial court to accept assurances that [the juror] would

judge the case impartially on the evidence at trial….” State v. Hallal, 557 So.2d 1388, 1390 (La.

1990), quoted in State v. Paul, 738 So.2d 1128 (La. App. 1999). Also see Martinez v. State, 795

So.2d 279 (Fla. App. 2001) (erroneous denial of cause challenge to juror partial to police

testimony).
                                             32


       For all practical purposes, Lt. Goodson was a member of the prosecution‟s “family” and

so clearly aligned with a party to this lawsuit that bias could even have been presumed. At issue

was “an objective relationship which permits the reviewing court to assess the effect of that

relationship upon the juror‟s ability to act impartially.” State v. Lee, supra, 292 N.C. at 622, 234

S.E.2d at 577 (abuse of discretion to fail to excuse police officer‟s wife for cause). Potential

jurors can have “such a close relationship, be it familial, financial, or situational, with any of the

parties, counsel, victims, or witnesses” that courts “should presume the likelihood of prejudice

on the part of the prospective juror….” State v. Pamplin, 138 S.W.3d 283, 286 (Tenn. App.

2003). The spirit of N.C.G.S. §15A-1212(4) and (5) was violated by the trial court‟s denial of

Mr. Cummings‟ challenge for cause.

       D.      The Denial of the Challenge for Cause Constituted a Clear
               Abuse of Discretion.

       To properly exercise discretion, a trial court must be able to “reasonably conclude” from

the voir dire examination that the juror could “render an impartial, independent decision based

on the evidence….” State v. Jaynes, 342 N.C. 249, 271, 464 S.E.2d 448, 461-462 (1995), cert.

denied, 518 U.S. 1024, 116 S.Ct. 2563, 135 L.Ed.2d 1080 (1996). (emphasis added) Where the

juror‟s responses unequivocally demonstrate an unfitness to serve, or are “at best ambiguous,” a

trial court is duty-bound to excuse the juror. State v. Cunningham, 333 N.C. 744, 745-755, 429

S.E.2d 718, 723 (1993). Excusal should occur “if for no other reason than to insure [the

defendant‟s] confidence in the basic fairness of the trial. In any sound judicial system it is

essential not only that justice be done but also that it appear to be done….” State v. Jackson, 32

N.J. 148, 160-161, 203 A.2d 1, 8 (1964), quoted with approval in State v. Lee, supra, 292 N.C. at

623, 234 S.E.2d at 578.
                                            33


       Lt. Goodson never retreated from his repeated assertions that matters such as drug abuse,

intoxication, domestic violence, child abuse, mental illness not constituting insanity, or learned

violence were unworthy of consideration in defense of a crime or in mitigation of penalty (Vol.

5WTp. 1116-1119, 1141-1147, 1199-1200) and that he was absolutely reluctant to follow the

court‟s instructions requiring genuine consideration. (Vol. 5WTp. 1212) In State v. Leonard,

supra, jurors unable to consider defense evidence in reaching their verdicts were unfit to serve

and the court‟s refusal to dismiss them deemed an abuse of discretion.

       Lt. Goodson never articulated an adherence to presumptions of innocence and life. In

State v. Hightower, supra, 331 N.C. at 641, 417 S.E.2d at 240, and State v. Cunningham, supra,

333 N.C. at 754-755, 429 S.E.2d at 723, similar statements indicative of “either a confusion

about, or a fundamental misunderstanding of, the principles of the presumption of innocence or a

simple reluctance to apply the principles” required the jurors‟ removal. Id.

       As to his partiality to law enforcement testimony, Lt. Goodson‟s final statement was that

he would probably attribute more credibility to law enforcement witnesses. (Vol. 5WTp. 1216)

In State v. Lee, supra, 292 N.C. at 625, 234 S.E.2d at 579, it was held an abuse of discretion to

deny a challenge for cause to a juror who initially stated that she would tend to lend more

credibility to police officer witnesses, yet whose final word was that she could give the testimony

of the defendant and his witnesses the same weight as law enforcement testimony.

       It was not reasonable for the trial court, in the face of the totality of Lt. Goodson‟s

responses and Lt. Goodson‟s oft-repeated doubts about his ability to serve on this case, to

conclude that he would weigh fairly the evidence presented, free from the influence of personal

experiences, biases, and preconceptions about the credibility of evidence to be presented. The

voir dire examination bore no resemblance to that reviewed in State v. Gell, 351 N.C. 192, 202-
                                             34


203, 524 S.E.2d 332, 339-340, cert. denied, 531 U.S. 867, 121 S.Ct. 163, 148 L.Ed.2d 110

(2000), where a highway patrolman affirmatively stated that he would not give police officer

testimony greater weight and that he had no reservations at all about his ability to decide the case

on the evidence, or State v. Burrus, 344 N.C. 79, 88, 472 S.E.2d 867, 874 (1996), where a former

deputy sheriff “stated clearly and unequivocally that he could…decide this case solely on what

he heard in the courtroom.” Lt. Goodson repeatedly expressed doubts that he could serve fairly

and impartially because of deeply-felt and long-held biases.

       The trial court took note of Lt. Goodson‟s beliefs and the difficulties Lt. Goodson

struggled with, stating

               there is just no doubt about it, he is a man of strong conviction and
               he is with [sic] viewed [sic] with strong beliefs, including matters
               in mitigation.

               But the Court is, likewise, convinced that he will follow the law.
               And if his belief or beliefs differ from the law, he will yield and try
               to obey and follow the law as he is instructed to him by the Court.

               In looking at his face, he‟s got a face that‟s been chiseled in stone
               and I imagine his convictions are just the same way. His
               convictions are strong. And if he sits there and tells us that he will
               yield a matter of personal preference or belief and follow the law, I
               think he will do so. The evidence demonstrates that he is a soldier.
               He is a patriot, a good man and good juror. (Vol. 5WTp. 1233-
               1234)

Trial courts are not charged with the task of making square pegs fit into round holes. Instead,

“the trial court should see to it that the jury is as nearly impartial „as the lot of humanity will

admit.‟” State v. Jackson, supra, 43 N.J. at 157-158, 203 A.2d at 6, quoting State v. White, 105

N.H. 159, 196 A.2d 33 (1963). The refusal to excuse Lt. Goodson for cause under §15A-1212(8)

or (9) constituted an abuse of discretion, as Lt. Goodson was unable to render a fair and impartial

verdict in accordance with the law.
                                            35


       E.      Mr. Cummings Was Forced to Accept a Jury Which Cannot
               Be Considered Impartial Due to the Trial Court’s Denial of
               His Challenge for Cause.

       To preserve the denial of a challenge for cause for appeal, Section 15A-1214(h) requires

that the defendant “must have exhausted his peremptory challenges, must have renewed his

challenge for cause as to each prospective juror whose previous challenge for cause had been

denied, and must have had his renewed motion denied.” State v. Bell, 344 N.C. 290, 304, 474

S.E.2d 345, 353 (1996), cert. denied, 520 U.S. 1180, 117 S.Ct. 1457, 137 L.Ed.2d 561 (1997).

Mr. Cummings met the statutory prerequisites by utilizing all of his peremptory challenges,

renewing his challenges for cause to prospective jurors Goodson and Boston, obtaining a ruling

denying the renewed motion, and requesting an additional peremptory challenge. (Vol. 16Tp.

1323, 1326, 1327, 1334-1336)

       When §15A-1214(h) is satisfied, this Court does not engage in an analysis of the fairness

of the sitting jury. Rather, as a matter of law, this Court deems that “[t]he failure of the trial

court to dismiss [the juror] for cause, coupled with the subsequent exhaustion of the defendant‟s

peremptory challenges, forced [him] to accept a jury which cannot be considered impartial.”

State v. Leonard, supra, 296 N.C. at 63, 248 S.E.2d at 856. Also see State v. Cunningham,

supra, 333 N.C. at 746, 429 S.E.2d at 719.           In this case, however, one cannot deem

inconsequential that, due to the exhaustion of peremptory challenges arising from this erroneous

denial of a challenge for cause and the trial court‟s failure to grant an additional peremptory

challenge, Mr. Cummings was forced to accept Walter Vinson, a former New Hanover County

Deputy Sheriff, as a sitting juror. (Vol. 16Tp. 1223) Prejudice thus existed in both law and fact.

See State v. Shope, 118 N.C. App. 270, 274-275, 454 S.E.2d 716, 719-720 (1995) (erroneous
                                             36


denial of cause challenge prevented defendant from removing juror who had worked with the

victim‟s brother).

       Every criminal defendant is guaranteed by the United States and North Carolina

Constitutions a fair trial. “That is true, regardless of the heinousness of the crime charged, the

apparent guilt of the offender or the station in life which he occupies.” Irvin v. Dowd, supra, 366

U.S. at 722, 81 S.Ct. at 1642, 6 L.Ed.2d at 755. Mr. Cummings was not accorded that most basic

fundamental right.

               Respect for the sanctity of an impartial trial requires that courts
               guard against even the appearance of unfairness for „public
               confidence in the fairness of our jury trials is essential to the
               existence of our legal system. Whatever tends to threaten public
               confidence in the fairness of jury trials, tends to threaten one of our
               sacred legal institutions.‟

Mhoon v. State, 464 So.2d 77, 81 (Miss. 1985) (conviction reversed where numerous police

officers and relatives of police officers sat on the jury as defendant exhausted his peremptory

challenges). The public can have no confidence in the fairness of this trial. Mr. Cummings‟

convictions must be reversed.

       II.     THE TRIAL COURT ABUSED ITS DISCRETION IN
               DENYING MR. CUMMINGS’ CHALLENGE FOR
               CAUSE TO JUROR BOSTON, AN AUTOMATIC
               DEATH PENALTY JUROR EXCLUDABLE UNDER
               MORGAN v. ILLINOIS.

               Assignment of Error No. 5, Rp. 172
               Assignment of Error No. 6, Rp. 172

       Standard of Review:

       The denial of a challenge for cause is reviewed for abuse of discretion. State v. Trull, 349

N.C. 428, 441-442, 509 S.E.2d 178, 188 (1998), cert. denied, 528 U.S. 825, 120 S.Ct. 95, 145

L.Ed.2d 80 (1999).
                                             37


       Argument:

       “Any juror who would impose death regardless of the facts and circumstances of

conviction cannot follow the dictates of law.” Morgan v. Illinois, 504 U.S. 719, 735, 112 S.Ct.

2222, 2233, 119 L.Ed.2d 492, 506 (1992). Such jurors must be excused for cause, for they lack

the impartiality required under the Fourteenth Amendment to the United States Constitution and

Article I, §§18, 19, and 23 of the North Carolina Constitution to serve as a juror in a capital case.

Id. at 729, 112 S.Ct. at 2229-2230, 119 L.Ed.2d at 503; State v. Conner, 335 N.C. 618, 644, 440

S.E.2d 826, 840 (1994). The totality of Kenneth Boston‟s responses in voir dire established that

he was an automatic death penalty juror. The trial court‟s refusal to excuse Mr. Boston for cause

constituted a gross abuse of discretion that deprived Mr. Cummings of a fair trial.

       In response to questions from the State, Mr. Boston answered affirmatively that he

understood that death was not the automatic penalty even if the defendant was convicted of “cold

blooded murder” and that he could follow the law. (Vol. 13Tp. 619, 621-623, 625, 640, 641)

When not giving one word answers to the prosecutor‟s leading questions, however, Mr. Boston‟s

true feelings began to emerge. Mr. Boston told the prosecutor that he has believed even more

strongly in the death penalty since he became a taxpayer. He questioned why taxpayers should

bear the expense for people imprisoned for life without the chance for parole since such

prisoners have no quality of life. (Vol. 13Tp. 627) He opined that many inmates presently

incarcerated should be executed, stating, “There are a lot of them out there now that shouldn‟t

even be in prison; they should be, you know, gone.” (Vol. 13Tp. 628)

       In response to questioning by the defense, Mr. Boston repeatedly stated that death was

the appropriate punishment for premeditated murder. In explaining his support for the death

penalty and willingness to return a death verdict, Mr. Boston stated:
                              38


Well, you know, if somebody has taken a life, you know, in cold
blood, you know, there‟s, you know – I mean, you just got to go by
the law, what the law says. You know what I mean? You got to
be willing to do that, to say, you know, that person is guilty or not
guilty basically. And my views are, you know, if it happened in
cold blood, if you can prove every fact to me that it is without a
reasonable doubt, that‟s what we have to do, you know. (Vol.
14Tp. 732-733)

You know, I‟ve had mixed feelings about it, you know, but I
definitely, you know, believe that if somebody was, you know,
murdered in cold blood and everything, I just believe that, you
know, you‟ve taken a life, you don‟t deserve to live, you know
what I mean? (Vol. 14Tp. 734)

And if it‟s proven like I said, every fact, it‟s got to be done. That‟s
all there is to it. (Vol. 14Tp. 734)

If it‟s premeditated, yes, I believe so [that a person who has taken a
life should pay with their own life]. (Vol. 14Tp. 734)

Yeah, I believe [that the death penalty is a necessary law]. I mean,
I know if I had taken someone‟s life, I would expect, you know,
the same thing; I mean, you know what I mean? I don‟t know how
– I know I wouldn‟t get away with it; you know what I mean? If
something happened, you know – I mean, I‟m just trying to be an
honest person, you know, and I just believe if it did happen, I
believe that I can do it. That‟s how I believe right now. (Vol.
14Tp. 735)

Yeah, I believe [that a person who has taken a life should pay with
their own life]. I mean, is the person going to have the quality of
life in prison anyway; you know what I mean? (Vol. 14Tp. 735-
736)

Well, just what kind of quality of life do you have in being in a
prison when you never have parole? You know what I mean? I
couldn‟t imagine being in a prison. I know I wouldn‟t want to live
– I‟m sure I wouldn‟t want to live where I could never – you know
what I mean, you‟re never going to get out and you‟re never going
to have any kind of social life again or nothing, so it‟s like to me
you might as well be – you know, might as well be dead. If I had
to go, I know I would rather be put to death than live in prison the
rest of my life. (Vol. 14Tp. 736)
                                             39


               But if I did something premeditated, I believe that you should be
               punished, that‟s all. I mean, you know, if I did it, I know I‟d be
               punished. (Vol. 14Tp. 737)

       The following exchange then occurred between defense counsel and Mr. Boston:

               Q: So if it‟s premeditated and it‟s cold-blooded and it‟s deliberate,
               it‟s willful, there is a specific intent to take that person‟s life, you
               feel that the appropriate punishment for that person would be that
               person should have their life forfeited?

               A: Right.

               Q: Taken away from them?

               A: Right. (Vol. 14Tp. 737)

       Mr. Boston reiterated in response to defense counsel‟s questioning that he felt strongly

that death was the appropriate punishment for murder (Vol. 14Tp. 738), that persons incarcerated

for life have no quality of life worth preserving anyway (Vol. 14Tp. 738), and that if it was

proven that Mr. Cummings had committed premeditated murder, felony murder, and armed

robbery, that the appropriate punishment was death.          (Vol. 14Tp. 739)      The defense then

challenged Mr. Boston for cause. (Vol. 14Tp. 740)

       In response to questioning by the State, Mr. Boston again answered affirmatively to

leading questions that he could follow instructions, perform the four step penalty phase process,

not decide for the death penalty before the sentencing phase began, and listen to the facts. (Vol.

14Tp. 740-743) On further questioning by the defense, however, Mr. Boston stated that the

appropriate punishment was death if the prosecution proved that aggravating circumstances

existed. (Vol. 14Tp. 747) The court denied the challenge for cause, noting that although Mr.

Boston had repeatedly said that a defendant should receive the death penalty for a premeditated

murder, he had agreed with the prosecutor that he could keep an open mind. (Vol. 14Tp. 753-

754)
                                            40


       On further questioning by the defense, Mr. Boston again stated that he strongly felt the

appropriate punishment for a premeditated murder was death, that life without parole was not a

sentence he would wish for himself, and that if he took a life he would feel that death was the

punishment he should receive. (Vol. 14Tp. 756) He reiterated that death was the appropriate

punishment if the prosecution proved that Mr. Cummings committed a murder and that death

was the appropriate punishment if the prosecution proved that an aggravating factor existed.

(Vol. 14Tp. 757) The defense renewed its challenge for cause. (Vol. 14Tp. 758)

       At that point, Mr. Boston volunteered that he had been confused by the defense

questioning.   (Vol. 14Tp. 758) He again gave one word affirmative responses to leading

questions posed by the prosecutor as to whether he understood that the sentence would not have

been decided by the guilty verdict, that he would have to go through a penalty phase, that he

would keep an open mind and listen to the evidence, and that he would be able to consider

mitigation if the defendant choose to put on evidence in mitigation. Mr. Boston agreed that he

could return a sentence of life without parole if the State failed to meet its burden. (Vol. 14Tp.

760-763)

       The prosecution then objected to the defense being permitted to question Mr. Boston any

further. (Vol. 14Tp. 763) The trial court sustained the objection (Vol. 14Tp. 769) and denied the

renewed challenge for cause. (Vol. 14Tp. 771) Following further discussion, however, the trial

court permitted the defense to ask one more question:

               Q: Mr. Boston, if a person were to be convicted of cold-blooded,
               first degree murder, is it your view that you would vote for the
               death penalty every time?

               A: Yes, sir. (Vol. 14Tp. 778)
                                            41


The defense renewed its challenge for cause. (Vol. 14Tp. 778) Mr. Boston again claimed to the

prosecutor that he had been confused by the question (Vol. 14Tp. 778) and gave one word

affirmative responses that he understood that a conviction for first degree murder standing alone

was not enough to get a death penalty, that he could not vote for the death penalty without first

having heard evidence of aggravation and mitigation, that he would keep an open mind, and

could go through the process. (Vol. 14Tp. 778-779)

       In further questioning by the defense, the following exchange occurred:

               Q: Just the question I asked was, to be clear, that if a person were
               to be convicted by you as a juror of first degree, cold-blooded,
               premeditated murder, would you vote for the death penalty then
               every time?

               A: If all the facts are proven to me, yes. (Vol. 14Tp. 780)

               Q: That if they find aggravating factors exist, a cold-blooded first
               degree murder, would your vote then be death every time?

               A: Yes. (Vol. 14Tp. 782)

The defense again renewed its challenge for cause. (Vol. 14Tp. 782) In rehabilitation, Mr.

Boston agreed to the leading questions that he was strong enough to return a death verdict (Vol.

14Tp. 782), that he would return a life sentence if the State did not meet each burden in the

penalty phase, and that what he had meant by saying that he would vote for death for

premeditated murder was that he would vote for death if the State met its burdens. (Vol. 14Tp.

783) On further defense inquiry, however, Mr. Boston again stated that the penalty he would

vote for in a premeditated murder case was death. (Vo. 14Tp. 785) After complaining that he

felt that he was the one on trial, Mr. Boston claimed that if the prosecutor did not prove the four

steps, he would vote for life without parole. (Vol. 787-788) The trial court denied the renewed

challenge for cause. (Vol. 14Tp. 789) After Mr. Boston stated that it would make no difference
                                            42


to him if Mr. Cummings testified, since all he wanted to know were the facts, the defense

excused Mr. Boston on a peremptory. (Vol. 14Tp. 853-855)

        When the defense later reraised the challenge for cause (Vol. 16Tp. 1327), thereby

preserving the issue for appeal under N.C.G.S. §15A-1214, the trial court stated that it had been

surprised by Mr. Boston‟s strong pro-death penalty responses, as it had expected Mr. Boston,

who was a butcher, to be pro-defendant. (Vol. 16Tp. 1332) The trial court felt that in the totality

of responses given that Mr. Boston could have kept an open mind on penalty. (Vol. 16Tp. 1333-

1334) Mr. Cummings took an exception to the denial of the renewed challenge. (Vol. 16Tp.

1334)

        When Mr. Boston was given the opportunity to choose his own words in response to non-

leading questions, he consistently returned to the themes that the law required imposition of

death (Vol. 14Tp. 732), that the appropriate punishment for premeditated murder was death (Vol.

14Tp. 734, 737, 785), that if guilt of premeditated murder was proven he would automatically

vote for death (Vol. 14Tp. 734, 735, 736, 739, 778, 780, 782), and that he would expect to be

sentenced to death if he committed a premeditated murder. (Vol. 14Tp. 735, 736, 737, 756) His

repeated affirmations were far different from State v. Perkins, 345 N.C. 254, 274, 481 S.E.2d 25,

32, cert. denied, 522 U.S. 837, 118 S.Ct. 111, 139 L.Ed.2d 64 (1997), for example, where the

juror only once stated that he would “more than likely” vote death before being rehabilitated by

the response that he would not automatically impose the death penalty.

        The Capital Jury Project has demonstrated that jurors who openly declare their beliefs

that death is required by law and that death is the only appropriate punishment for murder should

be taken at their word, as such beliefs “substantially contribute to an early pro-death stand. This

reality is manifestly contrary to the principles of capital sentencing in Lockett v. Ohio.” Bowers,
                                            43


Sandys & Steiner, Foreclosed Impartiality in Capital Sentencing:          Jurors’ Predispositions,

Guilt-Trial Experience, and Premature Decision Making, 83 Cornell L. Rev. 1476, 1546 (1998).

Such jurors, predisposed to the death penalty before the trial begins, tend to make their penalty

decision during the prosecution‟s guilt phase case. Id. at 1495. “Many early pro-death jurors

appear to have operated under a presumption that unequivocal proof of guilt justified the death

penalty.” Id. at 1497. Jurors such as Mr. Boston, who repeatedly state that death is the

appropriate penalty if guilt is proven (Vol. 14Tp. 734, 735, 736, 739) or express wholesale

disinterest in the defense presentation of a case (Vol. 14Tp. 853-855), enter a capital case with

               a predisposition toward seeing death as the right punishment soon
               after learning about the nature of the crime and the evidence of
               defendant‟s guilt. If neither the judge nor the attorneys detect this
               predisposition during voir dire, the jury will contain members who
               are especially prone to take a stand for death prior to, and
               irrespective of, evidence and arguments at the sentencing stage.

Id. at 1507.

       Voir dire performed its constitutionally expected function in uncovering Mr. Boston‟s

biases. He quite freely discussed his predispositions, only varying to give the “socially desirable

answer[s] jurors are naturally motivated to give” when asked the typical “follow the law”

rehabilitative questions. Id. at 1503. The same “follow the law” questions asked of Mr. Boston

were condemned as inadequate to ensure fairness by the United States Supreme Court in Morgan

v. Illinois, supra, 504 U.S. at 734-735, 112 S.Ct. at 2232-2233, 119 L.Ed.2d at 506.

               It is the natural impulse of all men, with rare exceptions, when the
               direct question is put to them, especially by one in authority, such
               as a district attorney or a trial judge, to declare that they believe
               they can disregard a preconceived opinion and render a fair and
               impartial verdict upon the evidence submitted to them. In general,
               they are sincere in their statement and belief. The declaration,
               however, should not only proceed from the mouth of the
               venireman, but it should be made in connection with a state of
               facts showing that it is probably true.
                                           44


State v. Joiner, 163 La. 609, 614, 112 So. 503, 505 (1927), quoted in State v. Lee, 292 N.C. 617,

624, 234 S.E.2d 574, 578 (1977). See State v. Shope, 118 N.C. App. 270, 274-275, 454 S.E.2d

716, 719-720 (1995). The trial court, predisposed to believe that Mr. Boston was really a pro-

defense sheep masquerading in wolf‟s clothing, manifestly abused its discretion in denying Mr.

Cummings‟ challenge for cause, for

              [i]t is difficult, if not impossible, to understand the reasoning
              which leads to the conclusion that a person stands free of bias or
              prejudice who having voluntarily and emphatically asserted its
              existence in his mind, in the next moment under skillful
              questioning declares his freedom from its influence. By what sort
              of principle is it to be determined that the last statement of the man
              is better and more worthy of belief than the former?

 Johnson v. Reynolds, 97 Fla. 591, 599, 121 So. 793, 796 (1929). Mr. Boston‟s automatic death

 penalty views “would „prevent or substantially impair the performance of his duties as a juror in

 accordance with his instructions and his oath.‟” Wainwright v. Witt, 469 U.S. 412, 424, 105

 S.Ct. 844, 852, 83 L.Ed.2d 841, 851-852 (1985), quoting Adams v. Texas, 448 U.S. 38, 45, 100

 S.Ct. 2521, 2526, 65 L.Ed.2d 581, 589 (1980). The refusal to remove Mr. Boston requires,

 under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and

 Article I, §§18, 19, 23, 24, and 27 of the North Carolina Constitution, that Mr. Cummings‟

 convictions be reversed.

       III.   THE TRIAL COURT’S MISAPPREHENSION OF THE
              NATURE OF “STAKE OUT” QUESTIONS DEPRIVED
              MR. CUMMINGS OF HIS RIGHT TO ELICIT INFOR-
              MATION DURING VOIR DIRE RELEVANT TO THE
              EXERCISE OF CAUSE AND PEREMPTORY
              CHALLENGES.

              Assignment of Error No. 7, Rp. 172

       Standard of Review:
                                               45


          “Regulation of the form of voir dire questions is vested within the sound discretion of the

trial court….” State v. Chapman, 359 N.C. 328, 346, 611 S.E.2d 794, 810 (2005). A court

abuses its discretion when its rulings were “manifestly unsupported by reason and could not have

been the result of a reasoned decision.” State v. Mickey, 347 N.C. 508, 518, 495 S.E.2d 669, 676

(1986).

          Argument:

          “[P]art of the guarantee of a defendant‟s right to an impartial jury is an adequate voir dire

to identify unqualified jurors.” Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 2230, 119

L.Ed.2d 492, 503 (1992). While a trial court has broad discretion in shaping the contours of voir

dire, the court may not be so restrictive as to strip the examination of its “two-fold purpose: (i)

to determine whether a basis for a challenge for cause exists, and (ii) to enable counsel to

intelligently exercise peremptory challenges.” State v. Syriani, 333 N.C. 350, 371, 428 S.E.2d

118, 119, cert. denied, 510 U.S. 948, 114 S.Ct. 392, 126 L.Ed.2d 341 (1993). The trial court

repeatedly sustained prosecutorial objections to questions it characterized as “stake out”

questions. As the questions were properly phrased, the restrictions imposed in voir dire violated

Mr. Cummings‟ rights under the Sixth, Eighth, and Fourteenth Amendments to the United States

Constitution and Article I, §§18, 19, 23, 24, and 27 of the North Carolina Constitution.

          In State v. Vinson, 287 N.C. 326, 336-337, 215 S.E.2d 60, 68, (1975), vacated in part,

428 U.S. 902, 96 S.Ct. 3204, 49 L.Ed.2d 1206 (1976), this Court explained that

                 [c]ounsel may not pose hypothetical questions designed to elicit in
                 advance what the juror‟s decision will be under a certain state of
                 the evidence or upon a given state of facts. In the first place, such
                 questions are confusing to the average juror who at that stage of
                 the trial has heard no evidence and has not been instructed on the
                 applicable law. More importantly, such questions tend to „stake
                 out‟ the juror and cause him to pledge himself to a future course of
                 action.
                                            46


In a capital case, defense counsel is thus prohibited from asking jurors whether they would

consider imposing a life sentence under a stated factual scenario, State v. Fletcher, 354 N.C. 455,

465-466, 555 S.E.2d 534, 541 (2001), cert. denied, 537 U.S. 846, 123 S.Ct. 184, 154 L.Ed.2d 73

(2002), or what type of evidence they would need to hear in order to return a life verdict. State v.

Jaynes, 353 N.C. 534, 548-550, 549 S.E.2d 179, 191-192 (2001), cert. denied, 535 U.S. 934, 122

S.Ct. 1310, 152 L.Ed.2d 220 (2002).

       The questions the defense was prohibited from asking in the instant case did not ask

jurors to commit to a life verdict or hypothesize as to what evidence they needed to return a life

verdict.   Rather, the questions sought factual information about the jurors and their life

experiences in order to develop and intelligently use challenges.

       Juror No. 10 opined that emotional abuse can be more damaging to a child than physical

abuse and answered affirmatively when asked if she thought a child exposed to violence would

be harmed by that exposure. The court sustained the State‟s objection to the follow-up question,

“In what ways would you imagine the harm would be?” (Vol. 5Tp. 996) Juror #5 stated that he

did not think it was a “real good idea” for a child to be exposed to domestic violence. The court

sustained the State‟s objection to the follow-up question, “What effects do you think that has on

the child?” (Vol. 5Tp. 1022) Juror #1 advised counsel that she thought her grandson witnessed

terrible fights between his parents. The court sustained the State‟s objection to the follow-up

question, “Do you think that was harmful for your children?” (Vol. 4WTp. 990) Juror #11

stated that he thought that violence could be learned behavior, but had never given it any

thought. The court sustained the State‟s objection to the follow-up question, “Do you think that

a child‟s exposure to violence is harmful to that child?” (Vol. 4TWp. 990) Juror #3 responded

that he did not know whether violence is a learned trait. The court sustained the State‟s objection
                                            47


to the follow-up question, “Do you think exposure to violence is harmful to children?” (Vol.

5WTp. 1099) The court sustained the State‟s objection to a question posed to juror #9, “Do you

believe that a woman who is abused has the ultimate responsibility to protect her children or do

you believe that society, the police, the courts, et cetera, has the responsibility to provide an

environment safe for that child?” (Vol. 12Tp. 320) Juror #9 related that he knew of a situation

where alcohol ruined an entire family, as the husband lost his job, his wife, and his children.

Regarding the children, the court sustained the State‟s objection to the question, “How did it

affect them?” (Vol. 13Tp. 551) The same juror advised counsel that he had seen some types of

abuse. The court sustained the objection to the follow-up question, “Did you see any effects it

had on that person?” (Vol. 13Tp. 553) Counsel asked juror #7, “Why would you think people

would use hard drugs?” The court sustained the State‟s objection to the question. (Vol. 13Tp.

576-577) In the course of a discussion about domestic violence, the court sustained the State‟s

objection to the question, “Do you think it [sic] that were going on in people‟s homes between a

husband and wife that something like that would have an impact or influence on the children?”

(Vol. 14Tp. 852-853) In discussing juror Vinson‟s involvement as a police officer responding to

domestic violence calls, the defense asked, “Do you think it‟s harmful for children to be involved

in that kind of violence?”    The court sustained the State‟s objection.      (Vol. 16Tp. 1316)

Alternate #1 advised counsel of experience with persons abusing alcohol or drugs and having

observed the effects of drug and alcohol use on persons around them. The court sustained the

State‟s objection to the follow, “Would you say those effects were negative?” (Vol. 17Tp. 1659)

Alternate #2 advised counsel that a child in her school was a victim of child abuse. The court

sustained the State‟s objection to the follow-up, “Did you have an opportunity to observe how

this child was affected by that?” (Vol. 18Tp. 1886)
                                             48


          These types of questions were asked, without drawing an objection by the State or

drawing objections which were overruled, of many of the jurors examined. (E.g. Vol. 4Tp. 819,

821, 894, 914) Due to counsel‟s inability to pursue the same matters with the above-listed

jurors, counsel was forced to excuse virtually all of them on peremptory challenges, except juror

Vinson due to counsel‟s exhaustion of peremptories. (Vol. 5Tp. 1133; Vol. 5WTp. 1099; Vol.

12Tp. 362; Vol. 13Tp. 597; Vol. 14Tp. 855; Vol. 18Tp. 1669)

          Defense counsel was not asking these jurors how they would vote or what evidence they

needed to hear. Counsel did not weave factual information about Mr. Cummings‟ life history

into “[h]ypothetical questions that seek to indoctrinate jurors regarding potential issues before

the evidence has been introduced….” State v. Jones, 347 N.C. 193, 203, 491 S.E.2d 641, 647

(1997) At best, counsel was beginning an inquiry to determine if the juror could consider

evidence in defense or mitigation, which the United States and North Carolina Constitutions

require the juror to consider. Morgan v. Illinois, supra. At worst, counsel was inquiring into

sympathies of the jurors, just as the State is permitted to do. See State v. Anderson, 350 N.C.

152, 170-171, 513 S.E.2d 296, 308, cert. denied, 528 U.S. 973, 120 S.Ct. 417, 145 L.Ed.2d 326

(1999).

          A “defendant on trial for his life should be given great latitude in examining potential

jurors.” State v. Conner, 335 N.C. 618, 629, 440 S.E.2d 826, 832 (1994). A broad examination

is necessary for counsel to develop the basis for a challenge for cause, since “it is the adversary

seeking exclusion who must demonstrate, through questioning, that the potential juror lacks

impartiality,” Wainwright v. Witt, 469 U.S. 412, 423, 105 S.Ct. 844, 852, 83 L.Ed.2d 841, 851

(1985) (emphasis added), or intelligently determine that expending a peremptory challenge is

warranted.     Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 1634, 68
                                           49


L.Ed.2d 22, 28 (1981). “Voir dire that impairs the defendant‟s ability to exercise his challenges

intelligently is grounds for reversal, irrespective of prejudice. Swain v. Alabama, 380 U.S. 202,

219, 13 L.Ed.2d 759, 85 S.Ct. 824 (1965), overruled on other grounds by Batson v. Kentucky,

476 U.S. 79, 90 L.Ed.2d 69, 106 S.Ct. 1712 (1986).” State v. Wiley, 355 N.C. 592, 611-612, 565

S.E.2d 22, 37 (2002), cert. denied, 537 U.S. 1117, 123 S.Ct. 882, 154 L.Ed.2d 795 (2003). The

limitation that occurred herein, based on a misapprehension that the questions were forbidden by

law, hampered Mr. Cummings‟ efforts to secure a fair and impartial jury. His convictions should

be reversed.

       IV.     THE TRIAL COURT ABUSED ITS DISCRETION IN
               DENYING MR. CUMMINGS’ REQUEST TO QUESTION
               PROSPECTIVE JURORS WHETHER ECONOMIC
               FACTORS RELATING TO THE COST OF INCARCERATION
               WOULD UNLAWFULLY ENTER INTO THEIR PENALTY
               PHASE DECISION MAKING.

               Assignment of Error No. 3, Rp. 171

       Standard of Review:

       The regulation of the extent of inquiry permitted of prospective jurors during voir dire is

committed to the trial court‟s discretion. State v. Bryant, 282 N.C. 92, 96, 191 S.E.2d 745, 748

(1972). An abuse of discretion occurs when a trial court‟s ruling is manifestly unsupported by

reason or so arbitrary that it could not have been the result of a reasoned decision. State v.

Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).

       Argument:

               “„The purpose of voir dire is to ensure an impartial jury to hear
               defendant‟s trial. [State v.] Anderson, 350 N.C. [152] at 170, 513
               S.E.2d [297] at 307 [1999] (quoting [State v. Gregory], 340 N.C.
               [365] at 388, 459 S.E.2d [683] at 651 [(1995)]. The right to an
               impartial jury recognizes that each side will be allowed to inquire
               into the ability of prospective jurors to follow the law, and
               questions designed to measure prospective jurors‟ ability to follow
                                             50


                 the law are proper within the context of voir dire. State v. Jones,
                 347 N.C. 193, 203, 491 S.E.2d 641, 647 (1997).

State v. Wiley, 355 N.C. 592, 617, 565 S.E.2d 22, 40 (2002), cert. denied, 537 U.S. 1117, 123

S.Ct. 882, 154 L.Ed.2d 795 (2003). A probing examination of a prospective juror‟s ability to

follow the law is critical in capital prosecutions, where extraneous or irrelevant considerations

could skew the reliability of a juror‟s penalty phase decision and undermine the entire premise of

capital sentencing. A juror who would factor improper concerns into the deliberative process

                 will fail in good faith to consider the evidence of aggravating and
                 mitigating circumstances as the instructions require him to do.
                 Indeed, because such a juror has already formed an opinion on the
                 merits, the presence or absence of either aggravating or mitigating
                 circumstances is entirely irrelevant to such a juror.

Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 2229, 119 L.Ed.2d 492, 402-503 (1992).

       Prior to trial, Mr. Cummings moved for permission to question jurors regarding their

views on the costs of incarceration versus execution. The court‟s initial reaction was that it

would sustain objections to any such questions. The defense argued that it would not ask jurors

to name a figure of what they thought incarceration and execution cost, but would inquire

whether they would factor preconceived economic notions as to cost in making their penalty

decision. The State argued that cost was an irrelevant factor. The trial court thereupon denied

the motion. (3/19/04 p.135-137) Mr. Cummings reraised the motion prior to the commencement

of voir dire. (Vol. 1Tp. 10) The defense argued that the inquiry was relevant, as conversations

with capital jurors in other cases revealed that they had taken economic factors into

consideration.    Inquiry was thus essential to ensure that Mr. Cummings was afforded his

constitutional rights. (Vol. 1Tp. 11) The trial court ruled that the information was irrelevant

and, in the exercise of its discretion, would not permit the inquiry either during voir dire or

through a jury questionnaire. (Vol. 1Tp. 12-13)
                                            51


       During voir dire, a prospective juror stated that one of the strongest reasons why he

supported the death penalty was the cost of supporting someone in prison for life. He stated that

it cost more to house someone for life than to execute him. He questioned why he should have to

go to work everyday if someone else just sat in prison. The trial court sustained the State‟s

objection to the defense asking where the juror got his information on incarceration costs. (Vol.

5Tp. 977) The juror then stated that he had always felt that it cost more to incarcerate than

execute, that he would factor that belief into his penalty phase decision, and that the defense

would bear the burden of his disinclination to support Mr. Cummings for the rest of Mr.

Cummings‟ life. (Vol. 5Tp. 978) The juror was ultimately excused for cause. (Vol. 5Tp. 991)

       The fact that a prospective juror volunteered, in the presence of other jurors, his belief

that incarceration cost more than execution and that he would factor that cost into a penalty

phase decision indicates that the requested inquiry was indeed relevant to determine the fitness of

prospective jurors to serve. “In crass economic terms it is well-established that taking the

average capital defendant from trial to execution costs more money than taking the average

criminal defendant from trial through a lifetime prison sentence.” Martin, Masking the Evil of

Capital Punishment, 10 Va. J. Soc. Pol‟y & L. 179, 229 (2002). Despite statistical information

demonstrating the wide disparity in costs, estimated for North Carolina capital defendants in

1993 as an additional $2,000,000 per execution, Lanier & Acker, Capital Punishment, the

Moratorium Movement and Empirical Questions: Looking Beyond Innocence, Race and Bad

Lawyering in Death Penalty Cases, 10 Psych. Pub. Pol. And L. 577, 587-588 (2004), a

“widespread misconception [exists] that it is cheaper to kill a criminal than to keep him alive in

prison for the rest of his life.” Note, Politics and the Death Penalty: Can Rational Discourse
                                             52


and Due Process Survive the Perceived Political Pressure?, 21 Fordham Urb. L. J. 239, 292

(1994).

          While misperceived notions of the cost of life imprisonment should play no role

whatsoever in jury deliberations, the reality is that jurors do factor costs into their penalty phase

decisions. Any juror who accords even the slightest weight to cost factors is unqualified to

serve.

          In State v. Elliott, __ N.C. __, 628 S.E.2d 735 (2006), this Court acknowledged that

determining whether prospective jurors had preconceived notions of costs was indeed relevant to

determining if jurors could follow the law, but that a trial court‟s refusal to permit the

questioning constituted a proper exercise of discretion. Disallowing relevant inquiry is instead

manifestly arbitrary, as “„[w]ithout an adequate voir dire the trial judge‟s responsibility to

remove prospective jurors who will not be able to impartially follow the court‟s instructions and

evaluate the evidence cannot be fulfilled.‟” Rosales-Lopez v. United States, 451 U.S. 182, 188,

101 S.Ct. 1629, 1634, 68 L.Ed.2d 22, 28 (1981), quoted in Morgan v. Illinois, supra, 504 U.S. at

729-730, 112 S.Ct. at 2230, 119 L.Ed.2d at 503. Mr. Cummings therefore requests this Court to

reconsider Elliott and rule that the refusal to permit such inquiry constitutes an abuse of

discretion requiring reversal of the death penalty verdict.

          B.     DENIAL OF RIGHT TO INFORM JURY OF LAW RELEVANT
                 TO PENALTY PHASE DECISION

          V.     THE TRIAL COURT ERRED IN REFUSING TO PERMIT
                 COUNSEL TO INFORM THE JURY IN PENALTY PHASE
                 CLOSING ARGUMENT THAT LIFE IS THE PRESUMPTIVE
                 SENTENCE UNDER NORTH CAROLINA’S CAPITAL
                 SENTENCING SCHEME.

                 Assignment of Error No. 19, Rp. 175-176

          Standard of Review:
                                            53


       A trial court‟s ruling on an issue of law is reviewed de novo. State v. Barber, 335 N.C.

120, 129, 436 S.E.2d 106, 111 (1993), cert. denied, 512 U.S. 1239, 114 S.Ct. 2747, 129 L.Ed.2d

865 (1994).

       Argument:

       Ruling that it was an incorrect statement of law, the trial court prohibited the defense

from informing the jury in penalty phase closing that “[t]he presumption is that [a] life sentence

is the appropriate penalty for first degree murder unless and until the prosecution proves

otherwise.” (Vol. 34Tp. 4738) Contrary to the ruling, North Carolina‟s capital scheme indeed

sets forth a presumption of life. Refusing to allow the jury to be accurately informed about the

nature of North Carolina‟s capital proceedings deprived Mr. Cummings of due process, trial by

jury, and his right to a reliable sentencing verdict, under the Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution and Article I, §§18, 19, 23, 24, and 27 of the

North Carolina Constitution.

       N.C.G.S. §15A-2000 sets forth a deliberative scheme strikingly similar to that examined

in Kansas v. Marsh, __ U.S. __, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006). Under Kansas law, “a

defendant becomes eligible for the death penalty only if the State seeks a separate sentencing

hearing…and proves beyond a reasonable doubt the existence of one or more statutorily

enumerated aggravating circumstances.” Id. at 2526, 165 L.Ed.2d at 443. (emphasis in original)

The jury is then “permitted to consider any evidence relating to any mitigating circumstance in

determining the appropriate sentence for a capital defendant, so long as that evidence is

relevant.” Id. (emphasis in original) If the jury then unanimously finds “„that the existence of

such aggravating circumstances is not outweighed by any mitigating circumstances which are

found to exist,‟” the jury imposes a sentence of death. Id. at 2520, 165 L.Ed.2d at 437.
                                           54


       Marsh argued that Kansas‟ capital scheme violated the Eighth and Fourteenth

Amendments by creating a presumption of death. The majority of the United States Supreme

Court disagreed, holding that the “Kansas capital sentencing system is dominated by the

presumption that life imprisonment is the appropriate sentence for a capital conviction.” Id. at

2527, 165 L.Ed.2d at 445. The Court reasoned:

              If the State fails to meet its burden to demonstrate the existence of
              an aggravating circumstance(s) beyond a reasonable doubt, a
              sentence of life imprisonment must be imposed. (citations
              omitted) If the State overcomes this hurdle, then it bears the
              additional burden of proving beyond a reasonable doubt that
              aggravating circumstances are not outweighed by mitigating
              circumstances. Significantly, although the defendant appropriately
              bears the burden of proffering mitigating circumstances – a burden
              of production – he never bears the burden of demonstrating that
              mitigating circumstances outweigh aggravating circumstances.
              Instead, the State always has the burden of demonstrating that
              mitigating evidence does not outweigh aggravating evidence.
              Absent the State‟s ability to meet that burden, the default is life
              imprisonment. Moreover, if the jury is unable to reach a
              unanimous decision – in any respect – a sentence of life must be
              imposed. (citations omitted) This system does not create a
              presumption that death is the appropriate sentence for capital
              murder.

Id.

       Section 15A-2000 protects life to an even greater extent than the Kansas scheme. Like

the Kansas capital statute, §15A-2000(a) requires the State to formally initiate capital

proceedings. Absent notification of an intent to seek the death penalty, a defendant convicted of

first-degree murder receives a life sentence. Sections 15A-2000(b), (c), and (f) likewise direct

the jury to find aggravating circumstances beyond a reasonable doubt, consider any evidence in

mitigation, and determine whether the mitigating circumstances are insufficient to outweigh the

aggravating circumstance(s) found. North Carolina jurors, however, do not stop there. Rather,

the jury must unanimously conclude beyond a reasonable doubt that the aggravating
                                             55


circumstance(s) found “are sufficiently substantial to call for the imposition of the death

penalty….”    §15A-2000(c)(2).     If the jury fails to unanimously agree on the existence of

aggravating circumstances or the appropriate penalty, the defendant must receive life. §15A-

2000(b). As in Kansas, the default at all stages at which the State bears the burden of proof is

life.

        Four members of the United States Supreme Court, however, read the identical statute

and pattern jury instructions in Marsh and concluded that Kansas‟ capital scheme set forth a

presumption of death. 126 S.Ct. at 2543-2544, 165 L.Ed.2d at 462-463.

        If nine judges examining a sentencing scheme substantially identical to North Carolina‟s

did not unanimously agree that the statute and jury instructions set forth a presumption of life,

Mr. Cummings‟ jury could not be expected to have divined that principle without assistance.

The trial court stripped the jury of that needed assistance by refusing to allow counsel to

accurately inform the jury as to the law, which case law clearly granted counsel the right to do.

State v. Monk, 286 N.C. 509, 515, 212 S.E.2d 125, 131 (1975).

        Informing the jury in the penalty phase of a capital case of the presumption of life mirrors

the critical necessity of informing the jury of the presumption of innocence. The presumption of

innocence, “although not articulated in the Constitution, is a basic component of a fair trial under

our system of criminal justice.” Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 1692, 48

L.Ed.2d 126, 130 (1976). Simply instructing the jury that the State bears a burden of proof

beyond a reasonable doubt in insufficient under the Fourteenth Amendment to advise jurors of

the presumption of innocence, for “[w]hile the legal scholar may understand that the presumption

of innocence and the prosecution‟s burden of proof are logically similar, the ordinary citizen may
                                             56


well draw significant additional guidance from an instruction on the presumption of innocence.”

Taylor v. Kentucky, 436 U.S. 478, 484, 98 S.Ct. 1930, 1934, 56 L.Ed.2d 468, 474 (1978).

       The presumption of innocence

               invokes at least three features of procedural fairness. First, the
               presumption ensures that the state‟s arrest, indictment, and
               arraignment of the accused are not considered evidence of guilt
               and that the accused is judged only upon evidence and arguments
               presented at trial. This „“purging” effect‟ of the presumption
               allows the defendant to start with a clean slate at trial, and is one of
               several procedures that help strip the state of its cloak of authority.
               Second, the presumption assigns to the prosecution the burden of
               producing evidence of the elements of the crime. Finally, the
               presumption places on the prosecution the burden of persuading
               the jury that a verdict of guilty is legally justified.

Brinkmann, Note: The Presumption of Life: A Starting Point for a Due Process Analysis of

Capital Sentencing, 94 Yale L.J. 351, 359 (1984). These same rationales apply with equal force

at capital sentencing where, having achieved a first-degree murder conviction, “the state‟s cloak

of authority is even more manifest….” Id. at 363. Advising the jury of the presumption of life

ensures that the prosecutor‟s decision to seek death is not considered in the jury‟s calculus and

that the jury understands the rationale behind the allocation of burdens of proof and persuasion.

Id. at 363-364. Further, advising the jury of the presumption of life acts to control jury discretion

and ensure that a death sentence is not arbitrarily returned. DeLaney, Better to Let Ten Guilty

Men Live: The Presumption of Life – A Principle to Govern Capital Sentencing, 14 Cap. Def. J.

283, 291-293 (2002).

       The need for such advisement was particularly apparent in this case, as the trial court

permitted the State, over defense objection, to argue in closing that it had already found Mr.

Cummings death-eligible by its guilt phase verdict. (Vol. 35Tp. 4756, 4760, 4764) As argued in

Issue VII infra, such a misstatement of law cloaked the State with even more authority in its
                                                    57


quest for a death verdict. Mr. Cummings sought to accurately explain to the jury how our capital

scheme operates. The trial court‟s misapprehension of the law deprived him of that critical

opportunity and thereby deprived the sentencing verdict of reliability under the Sixth, Eighth,

and Fourteenth Amendments to the United States Constitution and Article I, §§18, 19, 23, 24, 27,

and 35 of the North Carolina Constitution. Mr. Cummings‟ death sentence must therefore be

reversed.

           C.      PROSECUTORIAL PENALTY PHASE CLOSING ARGUMENT

           VI.     THE TRIAL COURT ERRED IN FAILING TO INTERVENE
                   EX MERO MOTU WHEN THE STATE URGED THE JURY IN
                   PENALTY PHASE CLOSING TO ADD SIXTEEN PECUNIARY
                   GAIN AGGRAVATING FACTORS TO ITS SENTENCING
                   CALCULUS.

                   Assignment of Error No. 24, Rp. 177
                   Assignment of Error No. 27, Rp. 177
                   Assignment of Error No. 373

           Standard of Review:

           “The standard of review for assessing alleged improper closing arguments that fail to

provoke timely objection from opposing counsel is whether the remarks were so grossly

improper that the trial court committed reversible error by failing to intervene ex mero motu.”

State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002).

           Argument:

           A “jury may not base its sentencing decision on an improper aggravating factor. State v.

Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979), cert. denied, 446 U.S. 941, [100 S.Ct. 2165,] 64

L.Ed.2d 796 (1980).” State v. Zuniga, 320 N.C. 233, 273, 357 S.E.2d 898, 923, cert. denied, 484

U.S. 959, 108 S.Ct. 359, 98 L.Ed.2d 384 (1987). Just as a “prosecutor may not argue an


3
    A Motion to Amend the Record to add Assignment of Error No. 37 was filed simultaneously with the Brief.
                                             58


aggravating factor not supported by the evidence or not included in the statutory list of

aggravating factors found in N.C.G.S. §15A-2000(e),” id., a prosecutor may not argue an

aggravating factor that is unavailable as a matter of law. As pecuniary gain and murder in the

course of an armed robbery are based on the identical evidence, the State is barred from

submitting both factors to a capital jury, for it is neither “appropriate nor equitable” to duplicate

statutory aggravating factors “resulting in an automatic cumulation of aggravating circumstances

against the defendant.” State v. Quisenberry, 319 N.C. 228, 239, 343 S.E.2d 446, 453 (1987).

At the prosecutor‟s request, the §15A-2000(e)(5) aggravating factor of murder during the

commission of a robbery was submitted in this case, rather than (e)(6) pecuniary gain. (Vol.

34Tp. 4711) Pecuniary gain was thus unavailable to the State as an aggravating factor.

       After reminding the twelve members of the jury and four alternate jurors of the three

aggravating factors they would weigh on the scales, the prosecutor told the jury:

               But sadly we‟re not done. No, we‟re not done. He did it for
               money. That‟s the very worst kind of crime because everyone is a
               potential victim who is sitting on his or her wallet right now. So
               that has to go on the scale. Put this on the scale and multiply it by
               16. (Vol. 35Tp. 4790)

       The prosecutor did not argue

               proper inferences and conclusions that addressed the specific
               issues submitted as to aggravating and mitigating circumstances.
               Such tactics risk prejudicing a defendant – and do so here – by
               improperly leading the jury to base its decision not on the evidence
               relating to the issues submitted, but on misleading
               characterizations, crafted by counsel, that are intended to
               undermine reason in favor of visceral appeal.

State v. Jones, supra, 355 N.C. at 134, 558 S.E.2d at 108. The argument thus “strayed far

enough from the parameters of propriety that the trial court, in order to protect the rights of the
                                             59


parties and the sanctity of the proceedings, should have intervened on its own accord….” Id. at

133, 558 S.E.2d at 108.

          The only matters a capital jury may properly consider in determining penalty are those

factors within §15A-2000(e) and (f) on which it has been instructed. State v. Sanderson, 336

N.C. 1, 20, 442 S.E.2d 33, 44 (1994); State v. Jones, 296 N.C. 495, 501, 251 S.E.2d 425, 429

(1979).     It is the aggravating and mitigating factors submitted which define the capital

defendant‟s death-eligibility and death-worthiness. Extolling uncharged aggravating factors is

thus extraordinarily prejudicial to a capital defendant,

                 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. See Caldwell
                 v. Mississippi, 472 U.S. 320, 323, 86 L.Ed.2d 231, 236, 105 S.Ct.
                 2633 (1985) (Eighth Amendment imposes „heightened “need for
                 reliability in the determination that death is the appropriate
                 punishment….”‟); see also Hance v. Zant, 696 F.2d 940, 951 (11th
                 Cir.) (In capital case, „it is most important that the sentencing
                 phase of the trial not be influenced by passion, prejudice, or any
                 other arbitrary factor. [citation omitted]. With a man‟s life at
                 stake, a prosecutor should not play on the passions of the jury‟),
                 cert. denied, 463 U.S. 1210, 77 L.Ed.2d 1393, 103 S.Ct. 3544
                 (1983); N.C.G.S. §15A-2000(d)(2) (1988) (death sentence may not
                 stand if „imposed under the influence of passion, prejudice, or any
                 other arbitrary factor.‟).

State v. Sanderson, supra, 336 N.C. at 8-9, 442 S.Ct. at 38. Accord State v. Rogers, 355 N.C.

420, 465, 462 S.E.2d 859, 886 (2002).

          Moreover, the prosecutor seemed particularly bent on diffusing the weight the jury might

accord the sheer number of mitigating factors submitted. He inflated the significance of the

aggravating factors by telling the jury that this was “the rarest of all cases because we have three

[aggravating factors] here.” (Vol. 35Tp. 4758) While advising that aggravating circumstances

are defined by the Legislature and that the State had “three times the necessary aggravating
                                            60


circumstances” to obtain a death sentence, the prosecutor predicted that the jury would hear the

list of mitigating circumstances “and say there is no way that can be set forth in our law. They‟re

not….” (Vol. 35Tp. 4759) Though the prosecutor implied that Mr. Cummings‟ counsel simply

made up whatever mitigating circumstances happened to come into their heads, this jury was in

fact instructed on five mitigating circumstances defined by the Legislature. (Rp. 87-92,116)

       Evidently, exaggerating the value of the rather commonplace occurrence of multiple

aggravating factors and denigrating the Legislature‟s role in defining mitigating circumstances

was not enough in the prosecutor‟s assessment to overcome the difference in numbers. The

prosecutor improperly urged the sixteen jurors to add sixteen pecuniary gain aggravating factors

by counting themselves as victims. “An argument „asking the jurors to put themselves in the

place of the victims will not be condoned….‟ United States v. Picknarcek, 427 F.2d 1290, 1291

(9th Cir. 1970).” State v. McCollum, 334 N.C. 208, 224, 443 S.E.2d 144, 152 (1993), cert.

denied, 512 U.S. 1254, 114 S.Ct. 2784, 129 L.Ed.2d 895 (1994). This type of “golden rule”

argument encourages the jury to abandon impartiality in favor of sympathy, fear, and prejudice.

See, e.g., McGuire v. State, 100 Nev. 153, 158, 677 P.2d 1060, 1064 (1984); State v. Rose, 353

N.W.2d 565, 568 (Minn. Ct. App. 1984); Williams v. State, 658 P.2d 499, 501 (Okla. Crim. App.

1983); Bullard v. State, 436 So.2d 962, 963 (Fla. App. 1983). The comment “so infected the trial

with unfairness as to make the resulting [verdict] a denial of due process,” Donnelly v.

DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431, 437 (1974), as, in the

face of compelling mitigation, it implicated Mr. Cummings‟ most basic due process right to be

tried solely on aggravating factors available in law to be lodged against him.

       While capital jurors are not to be “bean counters,” doling out life or death depending on

which side of the aggravating-mitigating scale is more heavily weighted, State v. Harris, 141
                                           61


N.J. 525, 662 A.2d 333, 353 (1995), “the side with the largest number of factors may have a

practical advantage before a sentencing jury.” State v. Bey, 112 N.J. 123, 175, 548 A.2d 887,

913 (1988). With the State having only three legitimate factors, and Mr. Cummings submitting

forty-one, the prosecutor apparently perceived a need to place a thumb more heavily on death‟s

side of the scale by improperly urging the jury to return a death verdict based on nineteen

aggravating factors. See Stringer v. Black, 503 U.S. 222, 232, 112 S.Ct. 1130, 1137, 117

L.Ed.2d 367, 379 (1992).

       “Though the argument called for stern rebuke and prompt curative instructions,” State v.

Sanderson, supra, 336 N.C. at 20, 442 S.E.2d at 44, the trial court did nothing to ensure that the

jury weighed only what it was charged with weighing. “The jury was presumably left with the

impression that it could consider [pecuniary gain] in aggravation of the murder.” Id. As the

argument stripped the death verdict of reliability, in violation of the Sixth, Eighth, and

Fourteenth Amendments to the United States Constitution, Article I, §§18, 19, 23, 24, and 27 of

the North Carolina Constitution, and §15A-2000(b), Mr. Cummings‟ death sentence must be

reversed.

       VII.    THE TRIAL COURT ERRED AND ABUSED ITS
               DISCRETION IN PERMITTING THE PROSECUTOR
               TO ARGUE IN PENALTY PHASE CLOSING THAT
               THE JURY HAD ALREADY FOUND THAT AN
               AGGRAVATING FACTOR EXISTED.

               Assignment of Error No. 20, Rp. 176
               Assignment of Error No. 21, Rp. 176

       Standard of Review:

       “The standard of review for improper closing arguments that provoke timely objection

from opposing counsel is whether the trial court abused its discretion by failing to sustain the

objection.” State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002). “The standard of
                                           62


review for assessing alleged improper closing arguments that fail to provoke timely objection

from opposing counsel is whether the remarks were so grossly improper that the trial court

committed reversible error by failing to intervene ex mero motu.” Id. at 133, 558 S.E.2d at 107.

       Argument:

       No North Carolina capital defendant enters the penalty phase having already been found

death-eligible. The jury must make an independent determination of death-eligibility. N.C.G.S.

§15A-2000(b)(1). In allowing the prosecutor to repeatedly advise the jury that it had already

found Mr. Cummings death-eligible by its guilt phase verdict, the trial court skewed the capital

deliberative process in favor of the State. The argument violated Mr. Cummings‟ rights under

the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I,

§§18, 19, 23, 24, and 27 of the North Carolina Constitution, requiring that the death sentence be

reversed.

       Prior to penalty phase closing argument, the defense objected to the prosecutor‟s planned

use of a chart stating, “The armed robbery during the premeditated murder is an aggravating

factor.” The defense argued that it was for the jury to determine whether the §15A-2000(e)(5)

aggravating factor existed and to say that the aggravating factor existed was an incorrect

statement of law. The defense noted that if the armed robbery had already been determined to be

an aggravating factor, no need would exist to submit the question to the jury. The prosecutor

responded that the chart correctly stated the law as the robbery constituted an aggravating factor

by virtue of the jury having found Mr. Cummings guilty under two theories of murder. (Vol.

34Tp. 4741-4742)

       The trial court found no fault with the wording used on the chart, but agreed with the

defense that it was a misstatement of law that the jury was bound by its guilt phase verdict to
                                             63


find the (e)(5) aggravating factor. The court noted that the jury was required to make a new

determination that the robbery was an aggravating factor. The court overruled the defense

objection, however, stating that the chart was only illustrative and could be used by the

prosecution during closing argument. (Vol. 34Tp. 4743-4744) Predictably, the prosecutor

repeatedly told the jury in penalty phase closing that it had already found the existence of the

(e)(5) aggravating factor. (Vol. 35Tp. 4756, 4760, 4764) No objections were lodged during the

argument to these misstatements of law.

       Permitting the prosecutor to utilize the chart constituted an abuse of discretion, as, by

recognizing that the chart embodied a misstatement of law, permitting its use “could not have

been the result of a reasoned decision.” State v. Burrus, 344 N.C. 79, 90, 472 S.E.2d 867, 875

(1996). Failing to intervene ex mero motu when the prosecutor followed through by repeatedly

misstating the law constituted reversible error, as the “argument in question strayed far enough

from the parameters of propriety that the trial court, in order to protect the rights of the parties

and the sanctity of the proceedings, should have intervened on its own accord and: (1) precluded

other similar remarks from the offending attorney, and/or (2) instructed the jury to disregard the

improper comments already made.” State v. Jones, supra, 355 N.C. at 133, 558 S.E.2d at 107.

       The remarks by the prosecutor essentially functioned either as a mandatory presumption

or directed verdict, both of which violate the Sixth and Fourteenth Amendments to the United

States Constitution and their North Carolina counterparts. See Sullivan v. Louisiana, 508 U.S.

275, 277, 113 S.Ct. 2078, 2080, 124 L.Ed.2d 182, 188 (1993); Sandstrom v. Montana, 442 U.S.

510, 521, 99 S.Ct. 2450, 2458, 61 L.Ed.2d 39, 49 (1979); State v. Allen, 359 N.C. 425, 445, 615

S.E.2d 256, 270 (2005); State v. Nobles, 350 N.C. 483, 516, 515 S.E.2d 885, 905 (1995). By

stating that the jury had already found the aggravating factor, the prosecutor told the jury that its
                                               64


guilt phase verdict “automatically mandate[d] the finding of the aggravating factor.” State v.

Jones, 357 N.C. 409, 419, 584 S.E.2d 751, 758 (2003). While one might, in legal theory,

characterize an (e)(5) finding as “„pending‟” when a jury has found a capital defendant guilty of

felony murder, State v. Cherry, 298 N.C. 86, 112, 257 S.E.2d 551, 567 (1979), cert. denied, 446

U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1980), it is wholly incorrect to conclude that the

finding has already been made. This miscue to the jury carried no lesser weight coming from the

prosecutor than it would have coming from the judge, for

                [i]t is fair to say that the average jury, to a greater or lesser degree,
                has confidence that these obligations [of fairness], which so plainly
                rest upon the prosecuting attorney, will be faithfully observed.
                Consequently, improper suggestions, insinuations, and especially,
                assertions of personal knowledge are apt to carry much weight
                against the accused when they should properly carry none.

Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935). Mr.

Cummings‟ death sentence must therefore be vacated. Cf. State v. Barden, 356 N.C. 316, 366,

572 S.E.2d 108, 140 (2002), cert. denied, 538 U.S. 1040, 123 S.Ct. 2087, 155 L.Ed.2d 1074

(2003) (not reversible error for prosecutor to advise jury that aggravated robbery is pecuniary

gain).

         VIII. THE TRIAL COURT ERRED IN PERMITTING THE STATE
               TO ARGUE A MATTER NOT IN EVIDENCE.

                Assignment of Error No. 25, Rp. 177

         Standard of Review:

         “The standard of review for assessing alleged closing arguments that fail to provoke

timely objection from opposing counsel is whether the remarks were so grossly improper that the

trial court committed reversible error by failing to intervene ex mero motu.” State v. Jones, 355

N.C. 117, 133, 558 S.E.2d 97, 107 (2002).
                                           65


       Argument:

       Due to jurors‟ beliefs that prosecutors refrain “from improper methods calculated to

produce a wrongful conviction” and their tendency to accord “much weight” to improper

prosecutorial closing arguments “when they properly should carry none,” Berger v. United

States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935), bodies ranging from the

General Assembly, the North Carolina State Bar, and this Court have repeatedly formulated

specific guidelines for closing arguments to ensure that criminal defendants receive fair trials.

See N.C.G.S. §15A-1230(a); Rule 3.4(e), The Revised Rules of Professional Conduct of the

North Carolina State Bar (2003). Too often, however, those pronouncements fall on the deaf

ears of prosecutors who “intentionally „push the envelope‟ in their jury arguments in the belief

that there will be no consequences for doing so.” State v. Jones, supra, 355 N.C. at 127, 558

S.E.2d at 104. Trial judges are charged with the duty to vigilantly monitor closing arguments to

“ensure that attorneys honor the aforementioned professional obligations” and to “intervene as

warranted….” Id. at 128, 129, 558 S.E.2d at 104, 105. The trial court‟s failure to intervene

when the prosecutor argued a matter not of record deprived Mr. Cummings of his rights to due

process of law, trial by jury, and freedom from cruel and unusual punishment, as guaranteed by

the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I,

§§18, 19, 23, 24, and 27 of the North Carolina Constitution, requiring that his death sentence be

reversed.

       Prosecutors are

              allowed to argue the law and facts in evidence and present all
              reasonable inferences to be drawn therefrom. State v. Craig, 308
              N.C. 446, 454, 302 S.E.2d 740, 745, cert. denied, 464 U.S. 908, 78
              L.Ed.2d 247, 104 S.Ct. 263 (1983) (emphasis added) (citations
              omitted). But the law is clear that during a closing argument to the
              jury an „attorney may not…make arguments on the basis of matters
                                            66


               outside the record….‟ N.C. Gen. Stat. 15A-1230(a) (1999).
               Likewise, our courts have consistently refused to tolerate „remarks
               not warranted by either the evidence or the law, or remarks
               calculated to mislead or prejudice the jury.‟ State v. Smith, 352
               N.C. 531, 560, 532 S.E.2d 773, 791-92 (2000), cert. denied, 532
               U.S. 949, 149 L.Ed.2d 360 (2001); State v. Sanderson, 336 N.C. 1,
               15-16, 442 S.E.2d 33, 42 (1994); State v. Wilson, 335 N.C. 220,
               224-225, 436 S.E.2d 831, 834 (1993); State v. Anderson, 322 N.C.
               22, 37, 366 S.E.2d 459, 468 (1988).

State v. Jordan, 149 N.C. App. 838, 842, 562 S.E.2d 465, 467 (2002). Given the duty imposed

on prosecutors to do justice, a “prosecutor‟s representations to a court or trier of fact should be

accurate, trustworthy, and based upon a good faith understanding of the law and facts of a

particular case.” State v. Smith, 359 N.C. 199, 225, 607 S.E.2d 607, 625 (Brady, J., concurring),

cert. denied, __ U.S. __, 126 S.Ct. 109, 163 S.E.2d 121 (2005).

       In responding to submitted mitigating factor number 29, “Paul‟s mother and sister‟s

mental stability would be severely affected if Paul were executed,” the prosecutor asked the jury,

               What about a son‟s love for his mom?

               You know, sometimes people don‟t think they‟re eloquent in
               talking and so they say the best thing I can do is be there and be
               present. Charles [Head] has been here every day. He‟s been here
               for eight weeks and you haven‟t heard him once. On Jane‟s living
               room and you saw some of the pictures, you just couldn‟t read it in
               the pictures, is something from Charles to his mom. „An Ode to
               Mother.‟

               „Hey, you know, just the other day I was looking in my wallet and
               I found several overdue IOUs. Some of them were almost 18 years
               old. I noticed another interesting thing, they were all to the same
               person.

               Thanks for being a maid and taking care of me and making my
               bed. Against, thanks for making sure that I took my medicine and
               for taking care of me when I had all the childhood diseases. Thank
               you for acting as a chef. Every time I said I was hungry, you
               would never hesitate, you would just cook something for me.
               Thank you for being a referee. You would stop Joni and I from
               fighting in an unfavorable manner, but nevertheless it worked.
                                            67


               You were also a taxi driver. When I had to go somewhere, you
               would take my promptly.

               This and many more things I could thank you for, but never pay
               you. Even if I worked a hundred years. However, in exchange for
               a kiss and a four letter word, I‟m sure you would mark the IOUs
               paid in full. Mom, I love you.‟

               That wouldn‟t be fair to put on the scale. I‟m not going to put that
               on the scale. (Vol. 35Tp. 4784-4787)

       If prosecutors deem that certain facts should come before the jury to ensure that a reliable

verdict is returned, they must introduce evidence of those facts. If they fail to do so, they cannot

seize upon closing argument to bring the matter to the jury‟s attention. State v. Eagle, 233 N.C.

218, 220-221, 63 S.E.2d 170, 172-173 (1951). This Court has “repeatedly stressed that counsel

may not „travel outside the record‟ by arguing facts or maters not included in the evidence of

record.” State v. Allen, 353 N.C. 504, 509, 546 S.E.2d 372, 376 (2001). See also State v.

Sanderson, supra (death sentence reversed as prosecutor misstated the evidence and suggested

personal knowledge of inflammatory facts not of record); State v. Williams, 317 N.C. 474, 481-

482, 346 S.E.2d 405, 410 (1986) (death sentence reversed as prosecutor failed to present any

evidence supporting the argument made); State v. Forney, 310 N.C. 126, 132, 310 S.E.2d 20, 24

(1984) (conviction reversed for closing argument premised on facts not of record).

       The State had the opportunity to put Charles Head on the stand during the penalty phase.

The State had the opportunity to enlarge a photograph so that jurors could read for themselves

whatever was on Ms. Head‟s living room wall. The State had the right to make a legitimate

argument against a finding in mitigation. What the State did not have the right to do was inject a

matter not in evidence to ensure a passion-driven verdict. This jury had to take it on faith that

this „Ode‟ in fact appeared on Ms. Head‟s wall, that Mr. Head lacked the verbal skills to be a

witness, and that Mr. Head still endorsed the sentiments the „Ode‟ expressed. Arguments outside
                                             68


the record are condemned precisely for requiring jurors to suspend the rules to allow prosecutors

to become witnesses in the case. If this type of misconduct is condoned as long as the prosecutor

explicitly informs the jury that he is referring to a matter not in evidence and tells the jurors that

he would not utilize the information in reaching a verdict, as this prosecutor did, there will be no

limit to what will occur in penalty phase closing arguments. Mr. Cummings‟ death sentence

should be reversed.

       IX.     THE TRIAL COURT ERRED IN FAILING TO INTERVENE
               EX MERO MOTU WHEN THE STATE ARGUED IN PENALTY
               PHASE CLOSING THAT MERCY WAS NOT PART OF THE
               LAW IN DETERMINING A PENALTY PHASE VERDICT.

               Assignment of Error No. 23, Rp. 176-177

       Standard of Review:

       “The standard of review for assessing alleged improper closing arguments that fail to

provoke timely objection from opposing counsel is whether the remarks were so grossly

improper that the trial court committed reversible error by failing to intervene ex mero motu.”

State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002).

       Argument:

       Consistent with the Sixth, Eighth, and Fourteenth Amendments to the United States

Constitution and Article I, §§18, 19, 23, 24, and 27 of the North Carolina Constitution,

prosecutors cannot misstate the law such that penalty phase decisions become skewed. State v.

Monk, 286 N.C. 509, 515-516, 212 S.E.2d 125, 131 (1975). It is “incumbent on the trial court to

monitor vigilantly the course of such arguments and to intervene when warranted” to ensure that

a reliable verdict is returned. State v. Jones, supra, 355 N.C. at 129, 558 S.E.2d at 105.

       The prosecutor argued to the jury in penalty phase closing:
                                            69


               They want to talk about compassion, mercy. That‟s not the law.
               That‟s not the standard. If it was, you wouldn‟t forget about the
               compassion and mercy that he showed for her. No, don‟t base it
               on any of that. (Vol. 35Tp. 4790)

The claim was a patent misstatement of law designed to misdirect the jury from its

constitutionally imposed function. The failure of the trial court to intervene and advise the jury

to disregard the argument deprived Mr. Cummings of a fair trial and reliable sentencing decision

as required by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution

and Article I, §§18, 19, 23, 24, and 27 of the North Carolina Constitution. Mr. Cummings‟ death

sentence must therefore be reversed.

       Mercy lies at the heart of the Eighth Amendment‟s requirement that a capital scheme

               treat each person convicted of a capital offense with that „degree of
               respect due the uniqueness of the individual.‟ Lockett v. Ohio, 438
               U.S. [586], at 605 [, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973, 990
               (1978)] (plurality opinion). That means affording the sentencer the
               power and discretion to grant mercy in a particular case, and
               providing avenues for the consideration of any and all relevant
               mitigating evidence that would justify a sentence less than death.

Callins v. Collins, 510 U.S. 1141, 1144, 114 S.Ct. 1127, 1129, 127 L.Ed.2d 435, 437 (1994)

(Blackmun, J., dissenting). A capital jury must be able to exercise discretion “to dispense mercy

on the basis of factors too intangible to write into a statute.” Gregg v. Georgia, 428 U.S. 153,

222, 96 S.Ct. 2909, 2947, 49 L.Ed.2d 859, 901 (1976) (White, J., concurring). Indeed, one can

define a mitigating circumstance as “„that which in fairness and mercy may be considered as

extenuating or reducing the degree of moral culpability or blame or which justify a sentence of

less than death, although it does not justify or excuse the offense.‟” Kansas v. Marsh, __ U.S.

__, 126 S.Ct. 2516, 2526 and n.3, 165 L.Ed.2d 429, 443-444 and n.3 (2006) (2006) (approving

the quoted Kansas pattern jury instruction as “foreclos[ing] the possibility of Furman-type error
                                              70


as it „eliminates the risk that a death sentence will be imposed in spite of facts calling for a lesser

penalty.‟”).

       North Carolina‟ capital scheme recognizes that jurors always possess the ability to

dispense mercy.     Issue No. 4 in the penalty phase deliberation, whether the aggravating

circumstances are sufficiently substantial to call for imposition of the death penalty, must be

addressed where the jury has found that the aggravating factors outweigh the mitigating factors

or found that no mitigating factors exist at all. (Rp. 118-120)            Such a determination is

constitutionally necessary.

               A jury must always be free to confront the ultimate question
               whether „“death is the appropriate punishment”‟ in the specific
               case, even where mitigating factors do not outweigh aggravating
               factors. Lockett v. Ohio, 438 US. 586, 601 (1978) (plurality
               opinion) (quoting Woodson v. North Carolina, 428 U.S. 280, 305
               (1987) (opinion of Stewart, Powell, and Stevens, JJ.). The jury
               may wish to vote for life out of a desire to render mercy, or it may
               believe that the death penalty is simply inappropriate for the
               specific crime the defendant has committed. These factors are
               properly part of the sentencing process.

Teague v. Tennessee, 473 U.S. 911, 912-913, 105 S.Ct. 3538, 3539, 87 L.Ed.2d 662, 662-663

(1985) (Marshall, J., dissenting). A capital jury thus can express its mercy at multiple points

through the deliberative process. The Constitutions require no less.

       California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987), has often been

miscited for the proposition that capital juries can be instructed that mercy is to play no role in

their deliberations. E.g. State v. Hoffman, 349 N.C. 167, 191, 505 S.E.2d 80, 94 (1998), cert.

denied, 526 U.S. 1053, 119 S.Ct. 1362, 143 L.Ed.2d 522 (1999); State v. Frye, 341 N.C. 470,

505-506, 461 S.E.2d 664, 682-683 (1995), cert. denied, 517 U.S. 1123, 116 S.Ct. 1359, 134

L.Ed.2d 526 (1996). Brown merely held that the Eighth Amendment was not violated by an

instruction stating that capital jurors “must not be swayed by mere sentiment, conjecture,
                                             71


sympathy, passion, prejudice, public opinion or public feeling.” None of the words used in the

instruction were synonyms of mercy. Nor could fact-based mercy be the same as “mere”

“sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling.”

       The prosecutor did not tell the jury to disregard feelings of mercy or sympathy “when

they were divorced from the evidence….” State v. Bishop, 343 N.C. 518, 553, 472 S.E.2d 842,

861 (1996), cert. denied, 519 U.S. 1097, 117 S.Ct. 779, 136 L.Ed.2d 723 (1997). Instead, he told

the jurors to disregard mercy altogether. That is clearly not the law.

       This jury found multiple mitigating circumstances. (Rp. 125-128) Its determination that

the mitigating circumstances did not outweigh the aggravating factors found (Rp. 130) could

well have reflected a fundamental misunderstanding of capital sentencing engendered by the

prosecutor‟s erroneous argument. To ensure that a reliable sentencing decision is made, Mr.

Cummings‟ sentence should be reversed.

       D.      INSTRUCTIONAL DEFECT

       X.      THE TRIAL COURT ERRED IN INSTRUCTING THE JURY
               PURSUANT TO N.C.G.S. §15A-2000(F)(1) AS THE EVIDENCE
               WAS INSUFFICIENT TO SUPPORT A JURY FINDING THAT
               MR. CUMMINGS’ CRIMINAL HISTORY WAS INSIGNIFICANT.

               Assignment of Error No. 12, Rp. 174

       Standard of Review:

       A trial court must review the evidence to determine if substantial evidence exists to

support submission of a statutory mitigating factor. State v. Watts, 357 N.C. 366, 377, 584

S.E.2d 740, 748 (2003), cert. denied, 541 U.S. 944, 124 S.Ct. 1673, 158 L.Ed.2d 370 (2004).

This Court conducts de novo review of the trial court‟s determination. State v. Hurst, 360 N.C.

181, 197, 624 S.E.2d 309, 322 (2006).

       Argument:
                                             72


       Mr. Cummings did not ask the trial court to instruct the jury on the N.C.G.S. §15A-

2000(f)(1) statutory mitigating factor that “the defendant has no significant history of prior

criminal activity. (Vol. 34Tp. 4712-4713; Vol. 35Tp. 4844-4845). As no rational jury could

have found that the factor existed, submission of the factor requires, under the Sixth, Eighth, and

Fourteenth Amendments to the United States Constitution and Article I, §§18, 19, 23, 24, and 27

of the North Carolina Constitution, that Mr. Cummings‟ death sentence be reversed.

       The trial court bore the duty of determining whether the evidence supporting the

submission of (f)(1) was substantial, such that “„a rational jury could conclude that the defendant

had no significant history of prior criminal activity.‟” State v. Barden, 356 N.C. 316, 372, 572

S.E.2d 108, 143 (2002), cert. denied, 538 U.S. 1040, 123 S.Ct. 2087, 155 L.Ed.2d 1074 (2003),

quoting State v. Wilson, 322 N.C. 117, 143, 367 S.E.2d 589, 604 (1988). (emphasis in original).

“Significant” denotes evidence “likely to have influence or effect upon the determination by the

jury of its recommended sentence.” State v. Walls, 342 N.C. 1, 56, 463 S.E.2d 738, 767 (1995),

cert. denied, 517 U.S. 1197, 116 S.Ct. 1694, 134 L.Ed.2d 794 (1996). “[I]t is not merely the

number of prior criminal activities, but the nature and age of such acts that the trial court

considers in determining whether by such evidence a rational juror could conclude that this

mitigating circumstance exists.‟” State v. Sexton, 336 N.C. 321, 375, 444 S.E.2d 879, 910, cert.

denied, 513 U.S. 1006, 115 S.Ct. 525, 130 L.Ed.2d 429 (1994), quoting State v. Artis, 325 N.C.

278, 314, 384 S.E.2d 470, 490 (1989), vacated on other grounds, 494 U.S. 1023, 110 S.Ct. 1466,

108 L.Ed.2d 604 (1990). The court must determine whether the defendant‟s history is

               of such a nature that it would not be likely to influence or affect the
               jury‟s decision of whether to recommend a life or death sentence.
               In other words, the prior criminal activity could be found by the
               jury to be completely irrelevant to the issue of sentencing. The
               prior activity of the defendant could be found to be completely
               unworthy of consideration in arriving at its decision.
                                             73


State v. Wilson, supra, 322 N.C. at 147, 367 S.E.2d at 606 (Martin, J., concurring).

       As this Court noted in State v. Hurst, supra, 360 N.C. at 196, 624 S.E.2d at 321, a

distortion has occurred in the consideration of the (f)(1) factor by the trial courts. Trial judges

have

               focused too closely on the existence, nature, and extent of a
               defendant‟s record and have correspondingly failed to consider the
               aspect of [this Court‟s] holdings that allows that court to determine
               whether a reasonable jury would find the defendant‟s activity to be
               significant.

If the record establishes that the defendant‟s history is in fact significant, submission of the

mitigating factor skews the entire deliberative process, as it casts the concept of mitigation on its

head and results in a single fact being double counted in aggravation. A mitigating circumstance

is supposed to be “a fact or group of facts which do not constitute any justification or excuse for

killing or reduce it to a lesser degree of the crime of first-degree murder, which may be

considered as extenuating, or reducing the moral culpability of killing, or making it less

deserving of the extreme punishment than other first-degree murders.” State v. Irwin, 304 N.C.

93, 104, 282 S.E.2d 439, 446-447 (1981). A jury inappropriately presented with the (f)(1) factor

may view the mitigation submitted with cynicism and skepticism and irrationally fail to find

factors uncontrovertedly supported by evidence or conclude that the substantial mitigation found

nonetheless fails to outweigh the aggravating factors proven. Additionally, the jury is expressly

told to consider the defendant‟s prior conviction as an aggravating factor under §15A-2000(e)(3).

(Rp. 82-83) By focusing the jury‟s attention on the conviction again under §15A-2000(f)(1), the

State unfairly reaps the benefit of de facto double counting of aggravating factors. See State v.

Quisenberry, 319 N.C. 228, 239, 343 S.E.2d 446, 453 (1987).
                                             74


       The trial court offered no explanation on record why it added the (f)(1) factor to the list

of mitigating factors submitted by the defense. (Vol. 34Tp. 4712-4713) Only six months before

the capital trial began, Mr. Cummings was convicted of robbery with a dangerous weapon. (Vol.

32Tp. 4405) The 31 August 2002 robbery of taxi driver Eula Cauldwell in the Dogwood Circle

Mobile Home Park occurred one month before the robbery-murder of Jane Head in the Dogwood

Circle Mobile Home Park. (Vol. 32Tp. 4407, 4411, 4423-4425) Mr. Cummings obtained money

at knife-point in both robberies. (Vol. 29Tp. 3992; Vol. 32Tp. 4425) The jury found that the

Cauldwell conviction was an aggravating factor in this case. (Rp. 82-83, 124) In addition, the

jury heard extensive evidence of (1) illegal drug activity (Vol. 21Tp. 2440; Vol. 27Tp. 3662,

3663, 3670, 3703, 3776-3777, 3783-3784; Vol. 28Tp. 3799; Vol. 29Tp. 3949-3950, 3954, 3959-

3960, 3962-3963, 3985-3986, 3996, 4008-4009, 4012, 4018, 4027; Vol. 30Tp. 4111-4112, 4115,

4131, 4134, 4142-4143; Vol. 33Tp. 4507, 4510, 4614-4621, 4624, 4642-4643. 4654, 4656-4657,

4659-4660, 4668-4671, 4675, 4678; Vol. Mp. 23, 37, 39, 51, 56-61, 63-68), (2) Ms. Head‟s

belief that Mr. Cummings burglarized her trailer in July 2002 and stole her television set (Vol.

21Tp. 2270, 2302-2308, 2315, 2437; Vol. 22Tp. 2713-2714; Vol. 24Tp. 2974-2980, 2993-2994,

2997-3001, 3003-3004, 3151, 3154; Vol. 29Tp. 4067-4071, 4073-4084, 4086-4088), and (3)

police suspicion that Mr. Cummings perpetrated additional break-ins and larcenies in the Mobile

Home Park. (Vol. 22Tp. 2714; Vol. 29Tp. 4071-4072, 4084-4085)

       The prosecutor told the jury in closing argument that one category of mitigating

circumstances submitted was that Mr. Cummings “was a good kid.”                    (Vol. 35Tp. 4768)

According to the prosecutor, the “very first mitigator” fell into that category:

               „The Defendant has no significant history of prior criminal
               activity.‟ Well, of course, he does; he has been convicted of the
               crime against Eula Cauldwell and, in fact, that‟s an aggravator. It
               is. And to be fair, not even the defense attorneys asked for the
                                             75


               inclusion of this one, that‟s required to be instructed on in this case
               because it is up to you to define whether or not that‟s significant,
               that he has only been convicted of armed robbery before. And, of
               course, it is. And keep in mind, he wasn‟t caught and convicted
               until after this crime. That‟s not what history means. History
               means even unsolved crimes.

               We know he was doing a number of breaking and enterings, we
               know he had extensive drug use, at least, according to him, and
               we‟re not seriously contending otherwise. We are seriously
               contending that it wasn‟t the day of the murder to the point that he
               was not able to form premeditation and deliberation. And you‟ve
               rejected that too. But folks, he has a very significant history of
               criminal activity so I ask you not to find that one. (Vol. 35Tp.
               4768-4769)

       It is not possible that evidence supporting the only aggravating factor independent of

those relating to the homicide itself could be deemed by a jury to “be so irrelevant that it could

reasonably infer the existence of the mitigating circumstance in N.C.G.S. §15A-2000(f)(1).”

State v. Artis, supra, 325 N.C. at 316, 384 S.E.2d at 491. Also see State v. Jones, 339 N.C. 114,

158, 451 S.E.2d 826, 850 (1994), cert. denied, 515 U.S. 1169, 115 S.Ct. 2634, 132 L.Ed.2d 873

(1995); State v. Sexton, supra, 336 N.C. at 375, 444 S.E.2d at 910. No rational jury could have

found that the armed robbery of Ms. Cauldwell, coupled with several years of illegal drug-related

activity, was not a significant criminal history, and indeed this jury rejected that the aggravating

circumstance was simultaneously mitigating. (Rp. 125)

       The giving of the (f)(1) instruction cannot be deemed harmless error. The jury found two

statutory mitigating circumstances, that the murder was committed while the defendant was

under the influence of mental or emotional disturbance and that the capacity of Mr. Cummings to

appreciate the criminality of his conduct or to conform his conduct to the requirements of the law

was impaired. (Rp. 125) The jury found ten non-statutory mitigating circumstances, including

that Mr. Cummings suffered from dysthymic disorder, post-traumatic stress disorder, depressive
                                             76


disorder, and polysubstance abuse as a result of domestic violence and abuse which was beyond

his control. It nonetheless rejected, either as to their existence or mitigating value, non-statutory

factors clearly supported by the evidence, such as Mr. Cummings‟ cooperation with police

officers at the time of his arrest, his expressions of remorse, and his good behavior while

incarcerated prior to trial. (Rp. 126-130)

       The trial court‟s submission of an aggravating factor in the guise of mitigation deprived

this sentencing verdict of the reliability demanded in capital cases. See Woodson v. North

Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976). Mr. Cummings‟

death sentence must be reversed.

       E.      MOTION FOR APPROPRIATE RELIEF

       On 13 September 2004, Mr. Cummings filed a Motion for Appropriate Relief seeking

vacation of the convictions and sentences on the ground that the decision to proceed capitally

violated the Eighth and Fourteenth Amendments to the United States Constitution and Article I,

§§18, 19, and 27 of the North Carolina Constitution as it was partially based on improper racial

and political considerations. (Rp. 140-149) Hearing was held on 24-27 January 2005. On 27

January 2005, Judge Martin denied the motion. (Rp. 150-156)

                                STATEMENT OF THE FACTS

       Mr. Cummings authorized counsel to offer a guilty plea to all charges in the Head and

Cauldwell cases in exchange for a sentence of life without parole. (Vol. 1MARp. 10, 27, 42)

Lead counsel Richard Miller conveyed the offer in writing to lead prosecutor Ben David and the

two had several discussions about the offer. (Vol. 1MARp. 10; Vol. 3MARp. 388, 392) Mr.

David told Mr. Miller that he would talk to Ms. Head‟s family. (Vol. 1MARp. 10-11)
                                             77


         In late 2003 and early 2004, the defense began sharing its mitigation with the State. (Vol.

1MARp. 13) On 4 May 2004, Mr. Cummings was examined, pursuant to court order, at

Dorothea Dix Hospital. (Vol. 1MARp. 15, 33) Mr. Miller, Mr. David, second-chair prosecutor

Dru Lewis, and the prosecutors‟ legal intern, Duke University law student Jeremy Eicher,

attended the mental health examination. (Vol. 1MARp. 15) After the examination, Mr. Eicher

told Mr. Miller that the mitigation in the case appeared to be strong. (Vol. 1MARp. 21)

         Hearings were held in the case on 1 June and 30 June 2004. Jeremy Eicher was present

at the hearings. Mr. Miller had never seen an intern so active with the prosecutors and staff

personnel during hearings. Eicher passed notes to and obtained things for Mr. David and Mr.

Lewis at the hearings. (Vol. 1MARp. 22) Trial began on 19 July 2004. Eicher was also present

during trial. He passed notes to the prosecutors and was involved in discussions. (Vol. 1MARp.

22-24)

         Mr. Miller and co-counsel Kevin Peters continued to hope, even after the trial began, that

a plea offer would be accepted. (Vol. 1MARp. 48; Vol. 2MARp. 205, 209, 211) During jury

selection, Mr. David alleged that the defense investigator twice called the loss prevention

department at Belk‟s Department Store and asked that worthless check charges against a seated

juror be dismissed. (Vol. 5Tp. 1029) Following a hearing, the trial court found that no unethical

or illegal conduct occurred. (Vol. 5Tp. 1130) The matter was played out in front of Ms. Head‟s

family. Due to the heated nature of the hearing, Mr. Miller felt that there was no longer hope

that the case could be resolved by a plea. (Vol. 2MARp. 211)

         During voir dire, Sarah Anthony, an attorney employed by the Fair Trial Initiative who

assisted in the Cummings mitigation investigation, had a conversation with Mr. David as they

waited in a jury room for restroom access. (Vol. 1MARp. 1266-127) After engaging in small
                                            78


talk, the two discussed charging decisions in capital cases. (Vol. 1MARp. 127-128) Mr. David

told her that he uses four factors in determining whether to try a case capitally: the heinousness

of the crime, the defenselessness of the victim, the unprovoked nature of the crime, and the need

for the victim‟s family to have justice. He stated that one only had to look at the faces of the

people on death row to see that African-Americans are disproportionately represented. (Vol.

1MARp. 128) He said that this case was different, as he perceived that prospective jurors would

not identify race as a factor when they entered the courtroom and looked at the courtroom scene

because Mr. Cummings looked not unlike himself, Ms. Anthony, or Mr. Cummings‟ counsel.

(Vol. 1MARp. 129)

       In late August, Jeremy Eicher returned to Durham to begin his third year at Duke Law

School. (Vol. 2MARp. 231, 272) He had spent the entire summer working primarily with Mr.

David on this case. (Vol. 2MARp. 232) He had done research, conducted and sat in on

interviews, reviewed evidence, and attended strategy sessions.      (Vol. 2MARp. 281) After

returning to school, he stayed up all night drafting a motion on voluntary intoxication and faxed

it to Mr. David. (Vol. 1MARp. 142) He left school to attend a day of the guilt phase trial to

observe the argument and ruling on intoxication. (Vol. 2MARp. 234)

       Eicher signed up for the Death Penalty Clinic at Duke Law School (Vol. 2MARp. 234),

stating on the application that he had worked as an Assistant District Attorney in the Fifth

Judicial District.   (Vol. 2MARp. 280)     The Clinic consisted of two components:        weekly

seminars and clinic assignments to pending cases through the Center for Death Penalty

Litigation. (Vol. 2MARp. 140-141) After the first class on 26 August 2004, he met with Clinic

Assistant Director Gretchen Engel. (Vol. 1MARp. 141; Vol. 2MARp. 235) Ms. Engel, an

attorney and Director of Post-Conviction Litigation at the Center for Death Penalty Litigation,
                                           79


had worked with the Clinic in the past placing students on capital cases.    When the Assistant

Director left to take another position, Clinic Director James Coleman, Jr., a professor at the Law

School, asked Ms. Engel to assume the post. This was her first year serving as the Clinic

Assistant Director. (Vol. 1MARp. 139-140)

       Jeremy Eicher initiated the conversation with Ms. Engel because he was concerned about

which student he would be paired with for the clinical portion of the class. He told Ms. Engel

that he was very ideological about the death penalty. He was concerned that there were students

in the class who were anti-death penalty and that tension would exist if he was paired with

someone whose ideology differed from his. (Vol. 1MARp. 142; Vol. 2MARp. 235-236) The

two ended up talking for twenty to twenty-five minutes about the Cummings case, State v. Dixon,

which was a pending capital case in Wilmington involving an African-American defendant

charged with killing a white UNC-Wilmington student, and other matters. (Vol. 1MARp. 142,

161-163) Mr. Eicher told Ms. Engel that Mr. David said that he would not necessarily have

sought death for Mr. Cummings at a prior time, but that it was not possible to offer Mr.

Cummings a plea bargain because Mr. Cummings looked white and was almost white. The

public would then perceive that he was being unfair in Dixon. (Vol. 1MARp. 162) Ms. Engel

was uncomfortable about what to do with the information Eicher relayed given the student-

teacher context in which it was related. (Vol. 1MARp. 166; Vol. 2MARp. 181) It did not seem

to her that Eicher had any clue as to the import of what he was saying. (Vol. 2MARp. 176)

       At the second clinic class, a student said that he did not think that prosecutors were

political. Mr. Eicher responded vigorously, “Oh yes they are.” Eicher said there was an example

in a case that was going on right now. Eicher said that Mr. David had “eight death penalties

under his belt” and was able to extol that experience over his opponents in the then-ongoing race
                                          80


for District Attorney. Eicher said that David asked voters, “if your mother or father, brother,

sister, son or daughter was murdered, who would you want in office?” (Vol. 1MARp. 144)

       Mr. Cummings was sentenced to death on 8 September 2004. (Vol. 36Tp. 4970-4971)

That night, Eicher e-mailed Professor Coleman and his fellow clinic students to advise them of

the verdict. (Vol. 1MARp. 14, 75-76, 108) At the Death Penalty Clinic class on 9 September,

Professor Coleman invited Mr. Eicher to talk to the class about the Cummings case. (Vol.

1MARp. 53)

       Eicher began the discussion by telling the class that Paul Cummings was a Lumbee

Indian who looked white. (Vol. 1MARp. 109, 145) He detailed the evidence in aggravation and

mitigation. (Vol. 1MARp. 53, 77, 144-145) Professor Coleman asked what made this case the

worst of the worst, which was one of the class themes. Mr. Eicher started talking about a case

involving a young black man who killed a white blonde college student. He said that you had to

compare the two to see which was the worst of the worst. Eicher saw the other case as more

heinous than Cummings‟ case. (Vol. 1MARp. 78)

       Eicher told the class that Mr. Cummings had wanted to plead guilty and receive a life

sentence. (Vol. 1MARp. 55) Eicher said he asked his boss why, when he had the college

student murder, he wouldn‟t take the plea. (Vol. 1MARp. 78, 94-95) Eicher said that Mr. David

would not permit a plea because he wanted to try the case capitally. Fellow student Stephanie

Bradford asked what the race of the victim was in Cummings. Mr. Eicher responded that the

victim was white. (Vol. 1MARp. 55) Ms. Bradford made a facial expression upon hearing that

information. Mr. Eicher responded, “No, race played out in a different way in this case.” (Vol.

1MARp. 145)
                                           81


       Eicher said that Mr. David told him that he could not not proceed capitally against Mr.

Cummings, who looked white, and seek the death penalty against the guy who was black as he

would appear to be a racist. (Vol. 1MARp. 55-56, 59, 67, 78-79, 94, 96, 100, 109, 145) Ms.

Bradford asked why it couldn‟t be said that the UNC-Wilmington murder was a more heinous

crime. Eicher responded that you couldn‟t say that in a twenty-second sound bite and there was

more intense media scrutiny because of the District Attorney election. (Vol. 1MARp. 79) After

another ten minutes of discussion, Professor Coleman abruptly ended the class. Ms. Engel

testified that after class, she said to Coleman, “Can you believe what he just said?” Professor

Coleman replied, “This is why we should abolish the death penalty.” (Vol. 1MARp. 147, 172)

They agreed that Eicher had no idea what he had said. (Vol. 1MARp. 148)

       Ms. Engel was aware that the Office of the Appellate Defender had already been

appointed to represent Mr. Cummings. After the class, Ms. Engel called Staples Hughes and told

him what Eicher said. (Vol. 1MARp. 170) The next day, on 10 September, Mr. Cummings‟

counsel separately interviewed Ms. Bradford, fellow students Noah Clements and David Fuhr,

and Ms. Engel. (Vol. 1MARp. 57-58, 82, 102) None had spoken to the others about the 9

September class. (Vol. 1MARp. 72, 82) Affidavits were prepared during the course of the

interviews. Ms. Bradford, Mr. Clements, and Ms. Engel signed their affidavits. (Rp. 144-149)

Mr. Fuhr, who corrected his affidavit to ensure that it accurately reflected his recollection of

Eicher‟s statements (Vol. 1MARp. 102, 106), did not sign his affidavit as he wanted to make

sure that Professor Coleman approved. (Vol. 1MARp. 103) Mr. Fuhr did not return to the

Office of the Appellate Defender to sign the affidavit when Professor Coleman told him that he

was not aware that students were being interviewed and cautioned him against signing an

affidavit. (Vol. 1MARp. 103)
                                          82


       Professor Coleman obtained attorneys for all of the Clinic students. (Vol. 1MARp. 60,

83; Vol. 2MARp. 323) He told the students not to talk to each other, to the Office of the

Appellate Defender, or to the Office‟s investigator. (Vol. 2MARp. 310, 323-324) He told Ms.

Bradford that he had a copy of her affidavit and not to talk to the Office of the Appellate

Defender again without first talking to an attorney who represented her interests. Ms. Bradford

was unsure what interests Coleman was referring to. (Vol. 1MARp. 60, 67-68)

       It became very uncomfortable for Ms. Bradford and Mr. Clements at Duke. (Vol.

1MARp. 61, 85) Although Professor Coleman did not view the class discussion as confidential,

Mr. Clements was threatened with an honor code action. (Vol. 1MARp. 84-85) Two articles

appeared in the law school newspaper questioning Mr. Clements‟ ethics and implying that Ms.

Bradford and Mr. Clements misunderstood what Eicher said. (Vol. 1MARp. 70, 85) Ms.

Bradford testified that there was a general assumption that she and Noah Clements betrayed

Jeremy Eicher. (Vol. 1MARp. 61) The situation became so uncomfortable for Ms. Bradford

that she transferred to Georgetown Law School. (Vol. 1MARp. 60-61) Ms. Engel was fired

from her Clinic position. (Vol. 1MARp. 159)

       Jeremy Eicher testified that in his post-class conversation with Ms. Engel on 26 August

2004, he did not discuss the Dixon case and did not attribute any statement to Ben David. (Vol.

2MARp. 239-240) He then admitted that he did attribute to Mr. David a statement regarding not

letting defendants pick their own punishment and testified that it was possible he made other

statements to Ms. Engel that he attributed to Mr. David. (Vol. 2MARp. 248) Although he

admitted that he initiated the conversation to express his concern about being paired with a

student who opposed the death penalty, he claimed that he was disturbed that Ms. Engel asked

him if he thought he could work effectively in the Clinic since he had worked as a prosecutor.
                                            83


(Vol. 2MARp. 235, 249) He testified that when Ms. Engel commented that there was “a ton of

mitigation” in the Cummings case, he simply shrugged as he did not agree with that assessment.

(Vol. 2MARp. 237)

       Eicher testified that in the e-mail he sent the class about the death verdict, he wrote that

he knew all about the case and people were free to ask him about it. He received no responses.

(Vol. 2MARp. 253) When Professor Coleman asked him at the 9 September class to talk about

the case, he felt he could relay information that others could learn from. He testified that he

discussed the facts of the case and the mitigation, although he claimed at the hearing to have had

only a general idea about the mitigation in the case. (Vol. 2MARp. 253, 255) He denied

attributing any statement to Ben David.      (Vol. 2MARp. 255) He claimed that when Ms.

Bradford asked what the race of the victim was, he responded that things were done differently

in Wilmington and race is not used as a factor. (Vol. 2MARp. 256)

       Eicher testified that he told the class that the decision to proceed capitally has to be made

on the facts of each case, for if decisions are not made on a case-by-case basis allegations of

racism could be made. He testified that he said that a prosecutor could have one case and then be

given a case involving a black male-white female with even worse facts. He testified that he

explained that if you allowed the first case to plead and then did not allow the black defendant to

plead, the black defendant‟s attorneys would allege racism. (Vol. 2MARp. 260) He claimed at

the hearing that his black defendant-white victim example was only a hypothetical and not a

reference to Dixon. (Vol. 2MARp. 261) He testified that he actually knew little about Dixon

beyond office scuttlebutt and media reporting (Vol. 2MARp. 262-263), although he admitted on

cross-examination that he drafted a motion in Dixon. (Vol. 2MARp. 276)
                                          84


       Mr. Eicher testified that he did ask Mr. David on the first day of his internship why Mr.

David was unwilling to accept Mr. Cummings‟ offer to plead to life without parole. (Vol.

2MARp. 257) He testified that Mr. David and Mr. Lewis responded that it was an incredibly

solid case with DNA evidence, a video, and all sorts of solid testimony. (Vol. 2MARp. 258) On

cross-examination, however, Eicher testified that he although he spoke to Mr. David every day

for four months, he never once asked him why Cummings was proceeding as a capital case or

what would happen to other cases if a capital case pled out. (Vol. 2MARp. 282-283, 285) Mr.

Eicher testified that he thought death was the appropriate penalty for Cummings. (Vol. 2MARp.

262)

       Mr. David testified that he was not part of the capital decision making process in

Cummings. (Vol. 3MARp. 382-384) The early decision to proceed capitally never changed

because the evidence in the case continued to strengthen for the State. (Vol. 3MARp. 399) He

denied that he ever told Jeremy Eicher that he had to proceed capitally against Paul Cummings

even though his case was not as bad as the one involving an African-American defendant or that

Mr. Cummings had more compelling mitigation than the African-American male. He denied

that he ever said that he could not not seek the death penalty for someone who looked white and

then seek death for someone who was clearly not white. (Vol. 3MARp. 409, 410)

       Mr. David testified that he had had discussions with District Attorney John Carriker

about Carriker‟s desire for David to serve as his successor. (Vol. 3MARp. 429) Mr. Carriker

told him he was resigning before Mr. Carriker publicly announced his resignation on 28 June

2004. He knew that Mr. Carriker would recommend him to the Democratic Party Executive

Committee as the nominee for District Attorney in the November 2004 election and to Governor

Easley to serve as the Interim District Attorney. (Vol. 3MARp. 428-429) When Governor
                                           85


Easley instead appointed another to the post (Vol. 2MARp. 338), Mr. David realized that a

nominating election would have to be held. (Vol. 3MARp. 429) Mr. David announced his

candidacy on 2 August 2004, during the Cummings voir dire. (Vol. 3MARp. 403-404) The

primary election was held on 14 September 2004. (Vol. 3MARp. 412)

       Both Cummings and Dixon received a lot of media attention during the campaign. (Vol.

3MARp. 434) Mr. David campaigned on the basis of prosecuting violent criminals, posted his

murder cases on his campaign website, asked voters who they would want in office if a person

they loved was murdered tonight, and told voters that he was the only candidate to have tried a

murder case. (Vol. 3MARp. 434, 450) He denied that he made any decision in this case based

on politics. (Vol. 3MARp. 404)

       Professor Coleman testified that, at the 9 September class, Jeremy Eicher said that he

asked Mr. David why Cummings had not plea bargained and attributed a response to Ben David.

(Vol. 2MARp. 318) Coleman testified that his impression was that Mr. David responded with an

illustration of what would occur if a race-neutral policy was not utilized. (Vol. 2MARp. 302,

305-306) Coleman testified that he did not think that Mr. David rejected the plea offer on racial

considerations. (Vol. 2MARp. 306) He testified that he was unsure whether he would continue

with the Death Penalty Clinic, as he had decided not to permit the Center for Death Penalty

Litigation to provide any more cases for students to work on. (Vol. 2MARp. 322-323)

       XI.    THE TRIAL COURT ERRED IN REFUSING TO ADMIT
              DAVID FUHR’S AFFIDAVIT AS SUBSTANTIVE EVIDENCE.

              Assignment of Error No. 34, Rp. 179

       Standard of Review:
                                            86


       The trial court‟s ruling on an issue of law is reviewed de novo. State v. Barber, 335 N.C.

120, 129, 436 S.E.2d 106, 111 (1993), cert. denied, 512 U.S. 139, 114 S.Ct. 2747, 129 L.Ed.2d

865 (1994).

       Argument:

       A writing is admissible as substantive evidence when a witness has “insufficient

recollection to enable him to testify fully and accurately,” N.C.G.S. §8C-1, Rule 803(5), and the

proponent establishes that the writing was “adopted by the witness when the matter was fresh in

his memory and reflected his knowledge accurately.” State v. Nickerson, 320 N.C. 603, 607, 359

S.E.2d 760, 762 (1987). The writing “need not have been made by the witness [himself]; it is

enough that [he] be able to testify that [he] saw it at a time when the facts were fresh in [his]

memory, and that it actually represented [his] recollections at the time.” Broun, Brandis &

Broun on North Carolina Evidence §224, p.201 (6th ed. 2004).

       On 10 September 2004, David Fuhr met with Mr. Cummings‟ attorney Staples Hughes

and told Mr. Hughes what Mr. Eicher had said the day before about the Cummings case. Mr.

Hughes memorialized Mr. Fuhr‟s recitation in an affidavit. Mr. Fuhr reviewed the affidavit and

made corrections to ensure that the affidavit accurately reflected his recollection of the words

spoken. (Vol. 1MARp. 102, 120) He used his best efforts to ensure that the affidavit was

accurate. (Vol. 1MARp. 106) Mr. Fuhr did not sign the affidavit at that time, as he wanted to

talk to Professor Coleman to make sure that Coleman approved of him giving an affidavit.

When Professor Coleman told him that he was not aware that Mr. Fuhr had been interviewed and

cautioned against him signing an affidavit, Mr. Fuhr did not return to the Office of the Appellate

Defender to sign it. (Vol. 1MARp. 103)
                                            87


       After receiving a subpoena to appear at the hearing on Mr. Cummings‟ Motion for

Appropriate Relief, Mr. Fuhr met with Mr. Cummings‟ counsel on 20 January 2005. He signed

the corrected copy of his affidavit. At the hearing on 24 January 2005, Mr. Fuhr testified that his

memory of the events was clear when he signed the affidavit four days before. He claimed,

however, that he could only testify generally about what happened in class on 9 September 2004,

as he no longer recalled everything that occurred. (Vol. 1MARp. 106) Counsel then tendered

Mr. Fuhr‟s affidavit under Rule 803(5) as a past recollection recorded. The trial court ruled that

an insufficient foundation had been laid for its admission. (Vol. 1MARp. 107)

       Mr. Fuhr then testified that at the 9 September 2004 class, Mr. Eicher talked about the

facts of the Cummings case. Eicher remarked that there were more atrocious and egregious cases

than Cummings‟. Stephanie Bradford asked about the race of the defendant. Mr. Eicher replied

that Mr. Cummings was a member of a Native American tribe, but looked white. Mr. Eicher

said there was another case where an African-American male murdered a white college student

in Wilmington that was more atrocious and egregious than Cummings‟ case. Mr. Fuhr recalled

Ms. Bradford asked either why Mr. Cummings didn‟t do a plea bargain or why Mr. Cummings

got death if the other case was more atrocious. Mr. Eicher then talked about race, politics, and

campaigning, attributing some remarks to Ben David

               that went along the lines of something like, I can‟t – for political
               purposes I can‟t get or I can‟t seek the death penalty in this – I
               cannot not seek the death penalty in the Cummings case if I seek it
               in the other case of the black defendant. That was more or less
               what I remember from the class. (Vol. 1MARp. 109-110)

Mr. Fuhr had no recollection whether Eicher talked about the race of the victim in Cummings.

(Vol. 1MARp. 110) The trial court thereupon ruled that Mr. Fuhr‟s affidavit was not admissible

as past recollection recorded. (Vol. 1MARp. 112-114; 2MARp. 215)
                                              88


       On its express terms, Rule 803(5) applies when a witness is unable to testify both fully

and accurately to a matter about which the witness once had knowledge. The fact that Mr. Fuhr

partially recalled matters at the hearing did not render his prior statement inadmissible. The

contents of the affidavit made clear that Mr. Fuhr memorialized a much more full and accurate

recitation of events. In the affidavit, Mr. Fuhr stated, inter alia:

               5.      A theme in our Death Penalty Clinic class sessions before
               September 9th was the problem of how to identify the worst of the
               worst murders and murderers, the ones that were appropriate for
               capital prosecution. On September 9th, Jeremy stated that when he
               first began working in the District Attorney‟s Office at the
               beginning of the summer, he had not believed that Paul Cummings
               was one of the worst of the worst because of the Defendant‟s
               psychological problems and his history of being abused. He
               questioned whether the case was appropriate for capital
               punishment.

               6.      At some point, Stephanie Bradford, also a student in the
               class, asked the race of the victim in Mr. Cummings‟ case. Jeremy
               responded that the victim was white, but that the race of the victim
               was not the way race figured in the case.

               7.     Jeremy told the class that he discussed his own opinion of
               the case with Assistant District Attorney Ben David, who was in
               charge of the prosecution of Mr. Cummings.

               8.      Jeremy told the class that Mr. David‟s response was that
               although Mr. Cummings in fact was a member of [a] minority
               group, native Americans of the Lumbee tribe, he looked white.
               Jeremy stated that in fact Mr. Cummings did „look more white than
               black.‟ Mr. David said that although Mr. Cummings‟ case was not
               nearly as aggravated as another recent case, he had to go for the
               death penalty in the Cummings case. Mr. David had a specific
               pending case in mind in which the murder committed by an
               African-American man was much more gruesome than the crime
               Mr. Cummings committed. The latter crime had received a great
               deal of media attention.

               9.     Mr. David told Jeremy that he simply couldn‟t go for a
               death sentence for this more aggravated crime committed by a
               black man and let Mr. Cummings plead for life without parole for
                                          89


             the less-aggravated crime, that he was afraid that the media would
             make him seem racially-biased. (Vol. 1MARp. 116-117)

Indeed, on cross-examination, Mr. Fuhr stated that he was mistaken on direct examination in

testifying that Ms. Bradford asked about the race of the defendant, as opposed to the victim, and

that his affidavit was the more accurate account. (Vol. 1MARp. 123) He again testified that

the affidavit contained the best recollection that he had of the statements Jeremy Eicher made in

class. (Vol. 1MARp. 124-125)

      For a variety of reasons, a witness‟ claimed memory in court can often be “less than

impressive.” State v. Leggett, 135 N.C. App. 168, 173, 519 S.E.2d 328, 332 (1999). In Leggett,

the defendant‟s cellmate wrote and signed an account of inculpatory statements made by the

defendant and gave it to an attorney. He later recounted the same statements to a detective and

signed a statement the detective prepared. At trial, the cellmate claimed that he could no longer

remember the substance of the defendant‟s statements. He acknowledged having previously

accurately recorded the statements.     The prior recordations were admitted as substantive

evidence under Rule 803(5), as the recordations were made “within a reasonable time of having

heard [the statements] and [he] testified that they were accurate when given.” Id. at 174, 519

S.E.2d at 332. Only when a witness claims that she never reviewed the writing and that the

contents of the writing are inaccurate would Rule 803(5) not be met. State v. Spinks, 136 N.C.

App. 153, 158-159, 523 S.E.2d 129, 133 (1999).

      The refusal to admit Mr. Fuhr‟s affidavit was clearly prejudicial.        The Motion for

Appropriate Relief presented a classic credibility contest. Ms. Bradford, Mr. Clements, and Ms.

Engel recited substantially identical statements by Eicher and testified that Eicher attributed

those statements to Mr. David. Mr. Fuhr testified consistently with Bradford, Clements, and

Engel, but not to the same degree of detail that each of those witnesses provided. Mr. Eicher
                                           90


 denied having made the statements. Mr. David denied having made the statements witnesses

 testified Eicher attributed to him. Coleman admitted that Eicher did attribute statements to Ben

 David, but differed in how those statements were worded and opined as to what the statements

 had meant. In resolving the credibility issue, adding the unbiased affidavit of Mr. Fuhr would

 have weighed heavily in Mr. Cummings‟ favor. Due to the trial court‟s erroneous ruling, Mr.

 Cummings should be afforded a new evidentiary hearing.

       XII.   THE TRIAL COURT ERRED IN PERMITTING
              JAMES COLEMAN TO TESTIFY TO WHAT HE
              THOUGHT JEREMY EICHER AND BEN DAVID
              MEANT, AS THE TESTIMONY FELL OUTSIDE
              THE PURVIEW OF LAY OPINION TESTIMONY.

              Assignment of Error No. 35, Rp. 179

       Standard of Review:

       The admission of evidence over objection creates a question of law that is reviewed de

novo. State v. Barber, 335 N.C. 120, 129, 436 S.E.2d 106, 111 (1993); cert. denied, 512 u.S.

139, 114 S.Ct. 2747, 129 L.Ed.2d 865 (1994); State v. Bell, 164 N.C. App. 83, 88, 594 S.E.2d

824, 827 (2004).

       Argument:

       A witness is prohibited, in the guise of lay opinion testimony, from speculating as to what

another person meant by his statements. State v. Roache, 358 N.C. 243, 294, 595 S.E.2d 381,

414 (2004). N.C.G.S. §8C-1, Rule 701 permits lay witnesses to testify only to “opinions or

inferences which are (a) rationally based on the perception of the witness and (b) helpful to a

clear understanding of his testimony or the determination of a fact in issue.” As this Court

explained in Roache:

              [T]his Court has interpreted this rule to allow evidence which „can
              be characterized as a “shorthand statement of fact,”‟ State v.
                                             91


                 Braxton, 352 [N.C. 158] at 187, 531 S.E.2d [428] at 445 [(2000),
                 cert. denied, 531 U.S. 1130, 121 S.Ct. 890, 148 L.Ed.2d 797
                 (2001)] (quoting State v. Spaulding, 288 [N.C. 397] at 411, 219
                 [S.E.2d 178] at 187 [1975, judgment vacated on other grounds,
                 428 U.S. 904, 96 S.Ct. 3210, 49 L.Ed.2d 1210 (1976)]), or, in other
                 words, the „instantaneous conclusions of the mind as to the
                 appearance, condition, or mental or physical state of persons,
                 animals, and things, derived from observation of a variety of facts
                 presented to the senses at one and the same time,‟ State v.
                 Spaulding, 288 N.C. at 411, 219 S.E.2d at 187 (quoting State v.
                 Skeen, 182 N.C. 844, 845-46, 109 S.E. 71, 72 (1921).

358 N.C. at 293-294, 595 S.E.2d at 414. Just as the witness in Roache was prohibited from

testifying that, based on her prior acquaintanceship with the defendant and post-arrest

conversations with him, she believed the defendant confessed to the charged murders in order to

cover for the actual perpetrator, Professor Coleman should have been prohibited from testifying

to what he thought Jeremy Eicher and Ben David actually meant when making their respective

statements. The erroneous admission of the testimony manifestly prejudiced Mr. Cummings, as

the trial court denied the Motion for Appropriate Relief in large measure by relying on Professor

Coleman‟s inadmissible spin.

          It is important to note in analyzing the admissibility of this testimony that Coleman

premised his opinions on two dubious factual assertions: that Jeremy Eicher never mentioned in

class that Paul Cummings offered to plead guilty (Vol. 2MARp. 301-302) and that the

conversation between Eicher and David occurred during the penalty phase or other portion of the

trial. (Vol. 2MARp. 305) Both factual predicates were contradicted by plenary evidence in the

record.

          Stephanie Bradford and Noah Clements both testified that Eicher stated that Mr.

Cummings wanted to plead guilty in exchange for a life sentence. (Vol. 1MARp. 55, 78, 99-

100) It was immediately after Eicher described the mitigation in the case that Ms. Bradford
                                            92


asked what the race of the victim was. (Vol. 1MARp. 55, 109) She testified that she asked what

the victim‟s race was because she could not think of any reason other than race to account for the

rejection of Mr. Cummings‟ plea offer in light of the evidence in mitigation. (Vol. 1MARp. 55)

       Second, Coleman testified that he believed that Eicher asked David why he was not

offering a plea while Eicher watched the mitigation evidence unfold at the penalty phase of the

trial, or perhaps earlier in the trial. (Vol. 2MARp. 305) Coleman testified that he thought David

was explaining to Eicher that he did not take cases away from juries once trials begin and that

permitting Mr. Cummings to plead at that point in time would open himself up to criticism for

pursuing death in the Dixon case. (Vol. 2MARp. 302) Eicher had testified, however, that he

asked Mr. David on the first day of his internship why Mr. David was not accepting a plea. (Vol.

2MARp. 257) He did not testify that he attended the penalty phase of the trial. No factual basis

supported Coleman‟s speculation that the conversation occurred during the penalty phase of the

trial. His claims of what the conversation really meant were thus not rationally based on valid

perceptions. Even had the subject matter of the testimony been admissible, Coleman‟s opinions

would have failed under Rule 701 on that basis alone.

       Over repeated objections and motions to strike, the trial court permitted Coleman to

testify that David referenced the Cummings and Dixon cases only to illustrate his race-neutral

policy and was not talking about the actual decision made in the Cummings case (Vol. 2MARp.

302-303, 306-307); that he did not think that David rejected a plea in the case because Mr.

Cummings looked white (Vol. 2MARp. 306); and that Eicher talked about the Cummings and

Dixon cases only to illustrate what could happen in the absence of a race-neutral policy. (Vol.

2MARp. 308) The court also refused to strike those portions of Coleman‟s affidavit relating to

the same points. (Vol. 2MAR p. 314, 316-317)
                                            93


       Professor Coleman‟s opinions were “meaningless assertions which amount to little more

than choosing up sides.” Advisory Committee‟s Note, Commentary to Rule 701. Rule 701

prohibits this type of opinion testimony that exceeds shorthand statements of facts precisely due

to the “fear that the trier of fact…might be too greatly influenced by the opinions of respected

witnesses….” Broun, Brandis & Broun on North Carolina Evidence §176, p. 5 (6th ed. 2004).

Stephanie Bradford, Noah Clements, and David Fuhr had no demonstrated axe to grind against

Jeremy Eicher or Ben David. Even if one were to attribute Gretchen Engel‟s testimony to

partisan zeal, such would not explain why her recollections of Eicher‟s statements were identical

to the students‟. Coleman, who testified for the State, contradicted State‟s witness Jeremy Eicher

by admitting that Eicher did in fact attribute statements to Ben David at the 9 September class.

Negating the evidentiary force of the defense case by allowing Coleman‟s musings about what

Eicher and David really meant fell into the very trap that Rule 701 is designed to avoid.

       The erroneous admission of opinion testimony constitutes grounds for reversal where the

result of the proceedings would likely have been different had the testimony not been admitted.

State v. Watson, 294 N.C. 159, 165, 240 S.E.2d 440, 445 (1978); §15A-1443. Given the court‟s

reliance on Coleman‟s testimony (Rp. 154), the erroneous admission “may have tipped the scales

in favor of the prosecution, and induced the [court] to resolve this critical issue against the

defendant.” State v. Cuthrell, 733 N.C. 274, 276, 63 S.E.2d 549, 550 (1951). Mr. Cummings

should be afforded a new evidentiary hearing on his motion.

       F.      PRESERVATION CLAIMS

       XIII. THE TRIAL COURT ERRED IN SUBMITTING THE
             VAGUE AND OVERBROAD “ESPECIALLY HEINOUS,
             ATROCIOUS, OR CRUEL” AGGRAVATING FACTOR.

               Assignment of Error No. 16, Rp. 175
                                           94


       Standard of Review:

       The trial court‟s ruling on an issue of law is reviewed de novo. State v. Barber, 335 N.C.

120, 129, 436 S.E.2d 106, 111 (1993), cert. denied, 512 U.S. 139, 114 S.Ct. 2747, 129 L.Ed.2d

865 (1994).

       Argument:

       Mr. Cummings moved to prohibit submission of the N.C.G.S. §15A-2000(e)(9) factor of

“especially heinous, atrocious, or cruel” on the ground that the factor was unconstitutionally

vague and overbroad in violation of the Eighth Amendment to the United States Constitution and

Article I, §27 of the North Carolina Constitution.     (Rp. 31, 34)    The trial court erred in

submitting the factor (Vol. 35Tp. 4841-4852), as the factor is vague and overbroad on its face

and cannot be cured by appellate narrowing.

       Section 15A-2000(e)(9) simply states that the death penalty may be imposed if “[t]he

capital felony was especially heinous, atrocious, or cruel.”        On its face, the factor is

unquestionably vague and overbroad. Maynard v. Cartwright, 486 U.S. 356, 363-364, 108 S.Ct.

1853, 1859, 100 L.Ed.2d 372, 382 (1988). Accord Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct.

1759, 64 L.Ed.2d 398 (1980). Due to its obvious constitutional infirmities, this Court quickly

embarked on a course of narrowing its scope. Recognizing that one might say that all murders

are heinous, atrocious, or cruel, State v. Goodman, 298 N.C. 1, 25, 257 S.E.2d 569, 585 (1979),

and a special danger is posed if “persons holding precisely this perception might comprise the

jury in a capital case,” the Court recognized that a “critical function [was] served by [the

Court‟s] review of its submission on appeal.” State v. Stanley, 310 N.C. 332, 336, 312 S.E.2d

393, 395 (1984).    The Court reasoned that §15A-2000(e)(9) would not be “impermissibly

[general] when it is applied in light of the construction which this Court has applied to it….”
                                             95


State v. Martin, 303 N.C. 246, 254, 278 S.E.2d 214, 220, cert. denied, 454 U.S. 933, 102 S.Ct.

431, 70 L.Ed.2d 240 (1981).

       Over the years, this Court has done far more than simply review HAC cases on

sufficiency of the evidence claims.       The Court has articulated a multitude of narrowing

definitions. The Court has found, for example, that the factor applies if:

               (1) the murder involved brutality in excess of that which is
               normally present in any killing, State v. Martin, supra, 303 N.C. at
               254, 278 S.E.2d at 220; or

               (2) the murder was a “conscienceless or pitiless crime which is
               unnecessarily tortuous to the victim,” State v. Goodman, supra,
               298 N.C. at 25, 257 S.E.2d at 585; or

               (3) the murder both involved brutality exceeding that which is
               normally present in any killing and was a conscienceless and
               pitiless crime unnecessarily torturous to the victim, State v. Rook,
               304 N.C. 201, 225, 283 S.E.2d 732, 747 (1981), cert. denied, 455
               U.S. 1038, 102 S.Ct. 1741, 72 L.Ed.2d 155 (1982); or

               (4) “the killing demonstrates an unusual depravity of mind on the
               part of the defendant beyond that normally present in first-degree
               murder,” State v. Brown, 315 N.C. 40, 65, 337 S.E.2d 808, 827
               (1985), cert. denied, 476 U.S. 1165, 106 S.Ct. 2293, 90 L.Ed.2d
               773 (1986); or

               (5) the killing is physically agonizing for the victim, State v. Lloyd,
               321 N.C. 301, 319, 364 S.E.2d 316, 330, sentence vacated on other
               grounds, 488 U.S. 807, 109 S.Ct. 38, 102 L.Ed.2d 18 (1988); or

               (6) the killing is in some way dehumanizing to the victim, id; or

               (7) the killing is less violent than other killings, but involved
               inflicting psychological torture, id.; or

               (8) the killing involved a prolonged death, State v. Reese, 319 N.C.
               110, 146, 353 S.E.2d 352, 373 (1987), overruled on other grounds
               by State v. Barnes, 345 N.C. 184, 481 S.E.2d 44 (1997); or

               (9) the killing was “committed in a fashion beyond what was
               necessary to effectuate the victim‟s death,” State v. Golphin, 352
                                             96


               N.C. 364, 480, 533 S.E.2d 168, 242 (2000), cert. denied, 532 U.S.
               931, 121 S.Ct. 1379, 149 L.Ed.2d 305 (2001).

       These narrowing constructions do not appear, however, in the pattern jury instruction

given to the jury. The pattern instruction, given verbatim in this case, simply states:

               „Was this murder especially heinous, atrocious or cruel.‟

               In this context, heinous means extremely wicked or shockingly
               evil; atrocious means outrageously wicked and vile; and cruel
               means designed to inflict a high degree of pain with utter
               indifference to, or even enjoyment of, the suffering of others. It is
               not enough that this murder be heinous, atrocious or cruel as those
               terms have just been defined. This murder must have been
               especially heinous, atrocious or cruel, and not every murder is
               especially so. For this murder to have been especially heinous,
               atrocious or cruel, any brutality which was involved in it must have
               exceeded that which is normally present in any killing or this
               murder must have been a conscienceless or pitiless crime which
               was unnecessarily torturous to the victim. If you find from the
               evidence beyond a reasonable doubt that this murder was
               especially heinous, atrocious or cruel, 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 „Issues and Recommendation‟ 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. (Vol.
               35Tp. 4841-4842; Rp. 84-85)

The definitions provided in the pattern instruction for “heinous,” “atrocious,” and “cruel” are

themselves vague and overbroad and provide no guidance to the jury. Shell v. Mississippi, 498

U.S. 1, 3, 111 S.Ct. 313, 314, 112 L.Ed.2d 1, 5 (1990) (Marshall, J., concurring). The remainder

of the instruction, though a correct statement of law, is woefully incomplete.       The only body

constitutionally permitted to make the finding – Mr. Cummings‟ jury – thus was not properly

guided in its decision making.

       The Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and

Article I, §§18, 19, 23, 24, and 27 of the North Carolina Constitution require that the finding of
                                             97


an aggravating factor be by the jury. Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 S.E.2d

556 (2002). With appellate review serving the purpose of defining the scope of the aggravating

factor, the determination of HAC in North Carolina has essentially been a joint fact finding

venture by capital juries and this Court. E.g. State v. Stanley, supra, 310 N.C. at 340-341, 312

S.E.2d at 398 (Court declines to characterize “„I killed the bitch‟” as a boast or “„Please Stan‟” as

a plea). Such no longer passes constitutional muster. See Bell v. Cone, 543 U.S. 447, 454 n.6,

125 S.Ct. 847, 852 n.6, 160 L.Ed.2d 881, 891 n.6, 13 n.6 (2005).

       As the HAC factor submitted to the jury was vague and overbroad, Mr. Cummings‟ death

sentence should be reversed. But see State v. Duke, 360 N.C. 110, 136-138, 623 S.E.2d 11, 28-

29 (2005).

       XIV. THE TRIAL COURT LACKED JURISDICTION TO ENTER
            A DEATH SENTENCE DUE TO THE ABSENCE OF AGGRA-
            VATING CIRCUMSTANCES IN THE INDICTMENT.

               Assignment of Error No. 29, Rp. 178

       Standard of Review:

       “Jurisdiction to try an accused for a felony depends on a valid bill of indictment. A valid

bill of indictment must allege all essential elements of a statutory offense.” State v. Baldwin, 117

N.C. App. 713, 715, 454 S.E.2d 193, 194, cert. denied, 341 N.C. 653, 462 S.E.2d 578 (1995). A

ruling on the adequacy of an indictment presents a question of law. The trial court‟s ruling on an

issue of law is reviewed de novo. State v. Barber, 335 N.C. 120, 129, 436 S.E.2d 106, 111

(1993), cert. denied, 512 U.S. 139, 114 S.Ct. 2747, 129 L.Ed.2d 865 (1994).

       Argument:

       Mr. Cummings was charged by short-form indictment with one count of murder. The

indictment failed to set forth any aggravating circumstance under N.C.G.S. §15A-2000(e)
                                             98


elevating the charge to capital murder. (Rp. 6) Mr. Cummings moved to dismiss the indictment

or prohibit the court from sentencing him to death due to the failure to enumerate aggravating

circumstances. (Rp. 24-28) The trial court‟s denial of the motion was erroneous (3/19/04 p.108,

121), as “[i]t is hornbook law that it is an essential of jurisdiction that a criminal offense should

be sufficiently charged in a warrant or in an indictment,” State v. Stokes, 274 N.C. 409, 411, 163

S.E.2d 770, 772 (1968), and that an indictment is valid only if it alleges all essential elements of

the charge. State v. Greer, 238 N.C. 325, 327, 77 S.E.2d 917, 919 (1953). The omission of

aggravating factors in the indictment deprived the trial court of jurisdiction to enter a death

sentence.

       In Apprendi v. New Jersey, 530 U.S. 466, 482, 120 S.Ct. 2348, 2358, 147 L.Ed.2d 435,

450 (2000), the United States Supreme Court held that the Sixth and Fourteenth Amendments do

not permit a defendant to be exposed “to a penalty exceeding the maximum he would receive if

punished according to the facts reflected in the jury verdict alone.” (emphasis in original) The

Court applied Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), to

state court prosecutions and held that any fact exposing a defendant to a punishment in excess of

the statutory maximum must be pled in the indictment, submitted to a jury, and proven beyond a

reasonable doubt. Apprendi v. New Jersey, supra, 530 U.S. at 476, 120 S.Ct. at 2355, 147

L.Ed.2d at 446.

       In Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the Supreme

Court held that Apprendi applies to capital proceedings. The Court noted that death is the

maximum authorized penalty for murder in form only, as a jury‟s verdict in the guilt phase of a

capital trial only exposes a defendant to a life sentence. To obtain a death sentence, the

prosecution must prove more. The Court characterized aggravating factors as the functional
                                             99


equivalent of elements of the offense of capital murder.

       The cumulative effect of Apprendi and Ring is that aggravating circumstances must be

pled in the indictment, submitted to a jury, and found beyond a reasonable doubt to satisfy the

Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, §22

of the North Carolina Constitution. As §15A-2000 requires facts in addition to those supporting

a murder conviction to be proven to the satisfaction of a jury proven beyond a reasonable doubt

to support the imposition of death, absent such pleadings, submission, and proof, the maximum

authorized penalty for murder in North Carolina is life without parole. See State v. Stanley, 310

N.C. 332, 312 S.E.2d 393 (1984). The failure to allege any aggravating circumstances in the

indictment in the instant case therefore violated the United States and North Carolina

Constitutions, requiring resentencing to life without parole.

       XV.     THE TRIAL COURT LACKED JURISDICTION TO ENTER
               A JUDGMENT OF CONVICTION OF FIRST DEGREE
               MURDER, AS THE SHORT-FORM INDICTMENT FAILED
               TO ALLEGE THE ELEMENTS OF THE OFFENSE.

               Assignment of Error No. 30, Rp. 178

       Standard of Review:

       “Jurisdiction to try an accused for a felony depends upon a valid bill of indictment. A

valid bill of indictment must allege all essential elements of a statutory offense.” State v.

Baldwin, 117 N.C. App. 713, 715, 453 S.E.2d 193, 194, cert. denied, 341 N.C. 653, 462 S.E.2d

578 (1995). A ruling on the adequacy of an indictment presents a question of law. The trial

court‟s ruling on an issue of law is reviewed de novo. State v. Barber, 335 N.C. 120, 129, 436

S.E.2d 106, 111 (1993), cert. denied, 512 U.S. 139, 114 S.Ct. 2747, 129 L.Ed.2d 865 (1994).

       Argument:

       Mr. Cummings was charged by short-form indictment with one count of murder. (Rp. 6)
                                            100


See N.C.G.S. §15-144. As the indictment failed to allege that Mr. Cummings committed a

premeditated and deliberate killing, the indictment charged only second degree murder. See §14-

17. Mr. Cummings motion to prohibit the State from seeking the death penalty and objection to

this court declaring this case capital was therefore erroneously denied by the trial court. (3/19/04

p.108, 121) As this Court has consistently ruled that the short-form indictment satisfies the state

and federal constitutions, e.g. State v. Wallace, 351 N.C. 481, 528 S.E.2d 326, cert. denied, 531

U.S. 1018, 121 S.Ct. 581, 148 L.Ed.2d 498 (2000), Mr. Cummings raises this insufficiency of

the indictment argument to preserve his right to present this issue in possible future proceedings

in state or federal court.

        Mr. Cummings contends that the indictment did not confer subject matter jurisdiction on

the trial court to try and sentence him for first degree murder, that the first degree murder

judgment varied fatally from the indictment, that the indictment did not indicate that the grand

jury voted to indict Mr. Cummings for first degree murder, that the State must allege in a pretrial

charging document all elements of every charge, that utilizing a short-form indictment violated

Mr. Cummings‟ right to equal protection of the law, and that the General Assembly lacks the

power to authorize the use of short-form indictments. These defects violated Mr. Cummings‟

rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States

Constitution and Article I, §§18, 19, 22, 23, 27, and 35 of the North Carolina Constitution. See

Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Apprendi v. New Jersey,

530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Jones v. United States, 526 U.S. 227,

119 S.Ct. 1215, 143 L.Ed.2d 311 (1999); Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed.

644 (1948); Hodgson v. Vermont, 168 U.S. 262, 18 S.Ct. 80, 42 L.Ed. 461 (1897); State v.

Stokes, 274 N.C. 409, 163 S.E.2d 770 (1968).
                                           101


       XVI. THE TRIAL COURT’S IMPOSITION OF A DEATH SENTENCE
            VIOLATED INTERNATIONAL LAW.
            Assignment of Error No. 31, Rp. 178

       Standard of Review:

       The trial court‟s ruling on an issue of law is reviewed de novo. State v. Barber, 335 N.C.

120, 129, 436 S.E.2d 106, 111 (1993), cert. denied, 512 U.S. 139, 114 S.Ct. 2747, 129 L.Ed.2d

865 (1994).

       Argument:

       On September 8, 1992, the United States adopted the International Covenant on Civil and

Political Rights (hereinafter ICCPR), thereby making it part of the “supreme Law of the Land”

under the United States Constitution. U.S. Const. Art. VI §2. Article VII of the ICCPR prohibits

the arbitrary deprivation of life. Article VII prohibits “cruel, inhuman or degrading treatment or

punishment.”     The death sentence herein was achieved by numerous violations of Mr.

Cummings‟ rights under the Sixth, Eighth, and Fourteenth Amendments to the United States

Constitution, Article I, §§18, 19, 22, 23, 24, 27, and 35 of the North Carolina Constitution, and

other provisions of North Carolina law. Moreover, Mr. Cummings can expect to be incarcerated

for years in conditions which violate the ICCPR.         The death sentence therefore violated

international law.

       When a treaty conflicts with state law, the treaty controls. Zschernig v. Miller, 389 U.S.

429, 440-441, 88 S.Ct. 664, 671, 19 L.Ed.2d 683, 692 (1968); Clark v. Allen, 331 U.S. 503, 508,

67 S.Ct. 1431, 1434, 91 L.Ed. 1633, 1641 (1947). “[S]tate law must yield when it is inconsistent

with or impairs the policy or provisions of a treaty or of an international compact or agreement.”

United States v. Pink, 315 U.S. 203, 230-231, 62 S.Ct. 552, 556, 86 L.Ed. 796, 818 (1942). The

State of North Carolina is bound by the ICCPR and cannot enforce the sentence entered against
                                           102


Mr. Allen. The trial court thus erred in denying Mr. Cummings‟ Motion to Prohibit a Death

Sentence Based on the International Covenant on Civil and Political Rights and Customary

International Law. (Rp. 21-23; 3/19/04 p.134)

                                        CONCLUSION

       For the foregoing reasons and authorities, Paul Dewayne Cummings, the Defendant-

Appellant herein, respectfully requests this Court to reverse his convictions and remand the cause

for a new trial. In the alternative, Mr. Cummings requests this Court to vacate the death sentence

and remand the cause for a new penalty phase hearing. Mr. Cummings further requests that a

new evidentiary hearing be held on his Motion for Appropriate Relief.

       Respectfully submitted, this the 2nd day of August, 2006.



                                     _______By Electronic Submission_______________
                                     Barbara S. Blackman
                                     Assistant Appellate Defender

                                     Staples S. Hughes
                                     Appellate Defender
                                     Office of the Appellate Defender
                                     123 W. Main Street, Suite 500
                                     Durham, North Carolina 27701
                                     Telephone: (919) 560-3334
                                     Barbara.S.Blackman@nccourts.org
                                     Staples.S.Hughes@nccourts.org

                                     ATTORNEYS FOR DEFENDANT-APPELLANT
                                           103


                        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 certify that a copy of the above and foregoing Defendant-Appellant‟s Brief has
been duly served upon Amy C. Kunstling and Daniel P. O‟Brien, Assistants Attorney General,
North Carolina Department of Justice, Post Office Box 629, Raleigh, North Carolina 27602, by
deposit in the United States mail, first-class and postage prepaid.

       This the 2nd day of August, 2006.



                                     _________By Electronic Filing___________________
                                     Barbara S. Blackman
                                     Assistant Appellate Defender

								
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