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					No. 211A06                              TWENTY-NINTH DISTRICT
                  SUPREME COURT OF NORTH CAROLINA
       ****************************************************
STATE OF NORTH CAROLINA        )
                               )
             v.                )   From Henderson
                               )
WILLIAM HENRY RAINES           )
       ****************************************************
                    DEFENDANT-APPELLANT‘S BRIEF
       ****************************************************
                                                     INDEX


TABLE OF AUTHORITIES

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

STATEMENT OF THE CASE .................................................................................. 5
STATEMENT OF GROUNDS FOR APPELLATE REVIEW ................................ 5

STATEMENT OF THE FACTS ............................................................................... 6

ARGUMENT ........................................................................................................... 29
INTRODUCTION ................................................................................................... 29
    I.       THE TRIAL COURT ERRED IN NOT PERMITTING MR.
             RAINES TO INTRODUCE EVIDENCE AT THE SENTENCING
             HEARING THAT HE WAS SEXUALLY ABUSED. ............................ 31

    II.      THE TRIAL COURT VIOLATED MR. RAINES‘ RIGHTS
             UNDER THE STATE AND FEDERAL CONSTITUTIONS AT
             SENTENCING BY PROHIBITING THE DEFENSE FROM
             PRESENTING EVIDENCE ABOUT THE CHAOTIC AND
             ABUSIVE NATURE OF MR. RAINES‘ FAMILY AND THE
             INJURIOUS ENVIRONMENT IN WHICH HE GREW UP. ................. 41
    III.     THE TRIAL COURT ERRED IN OVERRULING MR. RAINES‘
             OBJECTION AT SENTENCING TO TESTIMONY FROM A
             MEMBER OF THE VICTIM‘S FAMILY ABOUT HOW THE
             JURY SHOULD CONSIDER EVIDENCE ABOUT MR.
             RAINES‘ ABUSIVE BACKGROUND. .................................................. 49

    IV.      THE TRIAL COURT ABUSED ITS DISCRETION BY
             OVERRULING DEFENDANT‘S OBJECTION TO IMPROPER,
             SPECULATIVE CLOSING ARGUMENT IN WHICH A
             PROSECUTOR IMPUGNED THE INTEGRITY OF DEFENSE
             COUNSEL AND MR. RAINES BY CONTENDING THAT THEY
             WOULD HAVE DENIED MR. RAINES‘ GUILT IF THEY
             COULD HAVE GOTTEN AWAY WITH IT. ........................................... 57
                                                     ii

V.     THE TRIAL COURT ERRED BY NOT INTERVENING EX
       MERO MOTU TO PREVENT THE PROSECUTORS FROM
       MAKING A GROSSLY IMPROPER CLOSING ARGUMENT
       THAT ENCOURAGED THE JURY TO IGNORE NORTH
       CAROLINA LAW ABOUT DELIBERATION AS AN ELEMENT
       OF FIRST-DEGREE MURDER. ............................................................. 62

VI.    THE TRIAL COURT ERRED BY NOT INTERVENING EX
       MERO MOTU TO PREVENT THE PROSECUTORS FROM
       MAKING GROSSLY IMPROPER CLOSING ARGUMENTS
       DURING THE PENALTY PHASE ABOUT WHAT THE
       HOLDERS SAID TO MR. RAINES DURING +THE ATTACKS
       AND ABOUT WHAT MR. RAINES WAS THINKING DURING
       THE TRIAL, WHERE THESE ARGUMENTS WERE MERE
       SPECULATION WITH NO BASIS IN THE EVIDENCE. .................... 65
VII. THE TRIAL COURT ERRED BY NOT INTERVENING EX
     MERO MOTU TO PREVENT A PROSECUTOR FROM
     MAKING A GROSSLY IMPROPER STATEMENT DURING
     PENALTY PHASE CLOSING ARGUMENT THAT THAT ONLY
     EVIDENCE ABOUT THE CRIME ITSELF CAN BE
     CONSIDERED AS MITIGATING. .......................................................... 69

VIII. THE TRIAL COURT COMMITTED PLAIN ERROR IN
      ALLOWING THE BY THE STATE TO INTRODUCE
      HEARSAY TESTIMONY ABOUT MR. RAINES‘ BEHAVIOR
      IN JAIL DURING THE PENALTY PHASE THAT VIOLATED
      THE CONFRONTATION CLAUSE, AND DEFENSE COUNSEL
      PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY
      NOT OBJECTING TO THAT TESTIMONY ON THE BASIS OF
      THE CONFRONTATION CLAUSE.. ..................................................... 74
IX.    THE TRIAL COURT ERRED BY REJECTING DEFENDANT‘S
       REQUEST TO GIVE A PEREMPTORY INSTRUCTION ON
       THE (F)(2) MITIGATING CIRCUMSTANCE, WHERE
       UNCONTROVERTED EVIDENCE PROVED THAT MR.
       RAINES WAS UNDER THE INFLUENCE OF A MENTAL OR
       EMOTIONAL DISTURBANCE AT THE TIME OF THE
       KILLINGS. ............................................................................................... 89
X.     THE TRIAL COURT VIOLATED THE STATE AND FEDERAL
       CONSTITUTIONS AND N.C. GEN. STAT. 15A-2000 BY
                                                  iii

        SUBMITTING       DUPLICATIVE                  AGGRAVATING
        CIRCUMSTANCES WHEN IT SUBMITTED BOTH THE
        AGGRAVATING CIRCUMSTANCE THAT THE CAPITAL
        CASE WAS COMMITTED FOR PECUNIARY GAIN AND
        THAT THE CAPITAL CRIME WAS COMMITTED IN THE
        COMMISSION OF A ROBBERY........................................................... 92

XI.     THE TRIAL COURT COMMITTED PLAIN ERROR IN
        ALLOWING MEMBERS OF THE VICTIMS‘ FAMILY TO
        TESTIFY   ABOUT       IRRELEVANT                       BUT            HIGHLY
        PREJUDICIAL MATTERS CONCERNING HOW FAMILY
        MEMBERS REACTED TO HEARING ABOUT THEIR
        RELATIVES‘ DEATHS. ....................................................................... 100

XII. THE TRIAL COURT ERRED IN OVERRULING MR. RAINES‘
     OBJECTION TO A VERDICT FORM AT GUILT INNOCENCE
     THAT WAS UNCONSTITUTIONALLY SUGGESTIVE AND
     CONFUSING. ........................................................................................ 108
XIII. MR. RAINES WAS DENIED HIS RIGHT TO A FAIR AND
      IMPARTIAL JURY UNDER THE STATE AND FEDERAL
      CONSTITUTIONS BECAUSE A PROSPECTIVE JUROR
      ANNOUNCED IN JURY SELECTION THAT WHAT HE READ
      ABOUT THE CASE WAS PRETTY INCRIMINATING AND
      THAT COMMENT WAS HEARD BY JURORS WHO WERE
      ACTUALLY SEATED IN THE CASE, AND THE TRIAL
      COURT COMMITTED PLAIN ERROR BY NOT EITHER
      DECLARING A MISTRIAL OR IN THE ALTERNATIVE
      DISMISSING THE PROSPECTIVE JURORS WHO HEARD
      THOSE COMMENTS............................................................................ 113

XIV. MR. RAINES WAS DENIED HIS RIGHT TO HAVE A FAIR
     AND IMPARTIAL JURY CONSIDER HIS SENTENCE
     BECAUSE HE WAS DENIED THE OPPORTUNITY TO
     ADEQUATELY    AND      THOROUGHLY                        VOIR            DIRE
     PROSPECTIVE JURORS ABOUT THEIR VIEWS ON
     CAPITAL PUNISHMENT. ................................................................... 120
XV. THE TRIAL COURT ERRED BY TRYING DEFENDANT AND
    ENTERING JUDGMENT AGAINST DEFENDANT FOR
    FIRST-DEGREE MURDER, SINCE THE ―SHORT-FORM‖
                                               iv

        INDICTMENTS FOR MURDER ALLEGED ONLY THE
        ELEMENTS OF SECOND-DEGREE MURDER................................. 134

XVI. THE TRIAL COURT COMMITTED PLAIN ERROR IN
     SUBMITTING THE ―ESPECIALLY HEINOUS, ATROCIOUS,
     OR CRUEL‖ AGGRAVATING FACTOR TO THE JURY
     BECAUSE POST-RING, VAGUENESS AND OVERBREADTH
     CANNOT BE CURED BY APPELLATE NARROWING................... 136
XVII. THE TRIAL COURT COMMITTED PLAIN ERROR BY
      INSTRUCTING THE JURY TO ANSWER ―YES‖ FOR ISSUE
      THREE EVEN IF THE JURY WERE TO FIND THAT THE
      WEIGHT OF THE MITIGATING CIRCUMSTANCES
      EQUALED THE WEIGHT OF THE AGGRAVATING
      CIRCUMSTANCES............................................................................... 140

XVIII.THE TRIAL COURT COMMITTED PLAIN ERROR UNDER
      EIGHTH   AND   FOURTEENTH    AMENDMENTS             BY
      ALLOWING THE JURY TO REFUSE TO GIVE EFFECT TO
      MITIGATING EVIDENCE IF THE JURY DEEMED THE
      EVIDENCE NOT TO HAVE MITIGATING VALUE......................... 142

XIX. THE TRIAL COURT'S CAPITAL SENTENCING JURY
     INSTRUCTIONS, WHICH DEFINED DEFENDANT'S BURDEN
     OF    PERSUASION     TO    PROVE                MITIGATING
     CIRCUMSTANCES AS EVIDENCE THAT "SATISFIES" EACH
     JUROR, WERE PLAIN ERROR THAT VIOLATED DUE
     PROCESS AND THE EIGHTH AND FOURTEENTH
     AMENDMENTS BECAUSE THAT DEFINITION DID NOT
     ADEQUATELY GUIDE THE JURY'S DISCRETION ABOUT
     THE REQUISITE DEGREE OF PROOF. ............................................. 143

XX. THE TRIAL COURT ERRED BY INSTRUCTING THE
    JURORS FOR ISSUES THREE AND FOUR THAT EACH
    JUROR ―MAY‖ CONSIDER MITIGATING CIRCUMSTANCES
    FOUND IN ISSUE TWO. ...................................................................... 144

XXI. THE TRIAL COURT ERRED BY REFUSING TO DISCLOSE
     TO THE DEFENSE ANY INFORMATION IN LT. JERRY
     RICE‘S PERSONNEL FILE AFTER THE COURT EXAMINED
     THE FILE UNDER SEAL. ....................................................................145
                                                         v

    XXII. THE TRIAL COURT ERRED BY SENTENCING DEFENDANT
          TO DEATH BECAUSE THE DEATH PENALTY IS
          INHERENTLY CRUEL AND UNUSUAL; THE NORTH
          CAROLINA    CAPITAL  SENTENCING                 SCHEME                 IS
          UNCONSTITUTIONALLY VAGUE AND OVERBROAD; AND
          THE DEATH SENTENCE IN THIS CASE WAS NOT
          SUPPORTED     BY     THE          EVIDENCE,                       WAS
          DISPROPORTIONATE, AND WAS IMPOSED UNDER THE
          ARBITRARY INFLUENCE OF PASSION, PREJUDICE, AND
          OTHER ARBITRARY FACTORS........................................................ 149

CONCLUSION ...................................................................................................... 150
CERTIFICATE OF SERVICE .............................................................................. 151
                                                          vi


                                     TABLE OF AUTHORITIES


                                                     CASES
Bell v. Cone, __ U.S. __, 160 L.Ed.2d 881 (2005) ...............................................140

Berger v. United States, 295 U.S. 78, 79 L.Ed.2d 1314 (1935) ....................... 59, 67
Booth v. Maryland, 482 U.S. 496, 96 L. Ed. 2d 440 (1987)....................................53

Boyde v. Brown, 404 F.3d. 1159 (9th Cir. 2005) .....................................................48

Boyde v. California, 494 U.S. 370, 108 L.Ed.2d 316 (1990) ................................111
Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215 (1963) .....................................148
Cargle v. Mullin, 317 F.3d. 1196, 1221 (10th Cir. 2003) ........................................48

Cole v. Arkansas, 333 U.S. 196, 92 L.Ed. 644 (1948) ..........................................136
Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004) ..... 38-40,75,81,85

Davis v. Washington, ___ U.S. ___, 165 L. Ed. 2d 224 (2006) ..............................81

Dawson v. Delaware, 503 U.S. 159, 117 L. Ed. 2d 309 (1992) ..............................87
Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997)...........................................................36

Doe v. United States, 976 F.2d 1071 (7th Cir. 1992) ..............................................36
Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1 (1982) ...... 36, 46, 55, 123, 142

Ex parte Smith, 2003 Ala. LEXIS 79, 3-13 (Ala. 2003) ..........................................47

Godfrey v. Georgia, 446 U.S. 420, 64 L.Ed.2d 398 (1980) ..................................137

Green v. Georgia, 442 U.S. 95, 60 L. Ed. 2d 738 (1979)........................................37
Hitchcock v. Dugger, 481 U.S. 393, 95 L. Ed. 2d 347 (1987) ................................56

Hodgson v. Vermont, 168 U.S. 262, 42 L.Ed. 461 (1897).....................................136
In re Murchison, 349 U.S. 133, 136[, 99 L. Ed. 942, 946, 75 S. Ct.
      623] (1955) ..................................................................................................116
                                                          vii

In re Oliver, 333 U.S. 257[, 92 L. Ed. 682, 68 S. Ct. 499] (1948) ........................116
Irvin v. Dowd, 366 U.S. 717, 721-22, 6 L. Ed. 2d 751, 755, 81 S. Ct.
       1639 (1961) ..................................................................................................117

Jones v. United States, 526 U.S. 227, 143 L.Ed.2d 311 (1999) ............................134

Kansas v. Marsh, ___ U.S. ___, 165 L.Ed.2d 429 (2006) .....................................141
Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973 (1978) ...... 32,35,42,47,71,123,143

Maynard v. Cartwright, 486 U.S. 356 100 L.Ed.2d 372 (1988) ...........................137

McKoy v. North Carolina, 494 U.S. 433, 108 L. Ed. 2d 369 (1990) ... 46, 56, 70, 71
Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492 (1992)... 117, 121-25, 132, 134
Payne v. Tennessee, 501 U.S. 808, 115 L. Ed. 2d 720 (1991) ................... 47, 50, 54

Penry v. Lynaugh, 492 U.S. 302, 106 L.Ed.2d 256 (1992) ...................................142
Reynolds v. United States, 98 U.S. 145, 155[, 25 L. Ed. 244, 246
     (1878 )] ........................................................................................................117

Ring v. Arizona, 536 U.S. 584, 153 L.E.2d 556 (2002) .........................................140
Shell v. Mississippi, 498 U.S. 1, 112 L.Ed.2d 1 (1990) .........................................139

Skipper v. South Carolina, 476 U.S. 1, 90 L.Ed.2d 1 (1986) ........................... 70, 72
Stanton v. Brame, 136 N.C. App. 170, 523 S.E.2d 424 (1999) ...................... 89, 108

State v. al-Bayyinah, 359 N.C. 741, 616 S.E.2d. 500 (2005), cert.
       denied, ___ U.S. __, 164 L.Ed.2d. 528 (2006) ..............................................86
State v. Allen, 353 N.C. 504, 546 S.E.2d 372 (2001) ..............................................57

State v. Atkins, 349 N.C. 62 505 S.E. 2d 97 (1998), cert. denied, 526
       U.S. 1147, 143 L.E.2d. 1036 (1999) .............................................................88

State v. Bell, 164 N.C. App. 83, 594 S.E.2d 824 (2004) ............................ 31, 41, 49

State v. Benson, 323 N.C. 318, 372 S.E.2d. 517 (1988) ..........................................83
State v. Blackstock, 314 N.C. 232 333 S.E.2d 245 (1985) ....................................113
                                                          viii

State v. Bowman, 349 N.C. 459 509 S.E.2d. 428 (1998), cert. denied,
       527 U.S. 1040, 144 L. Ed. 2d 802 (1999) .....................................................54

State v. Brown, 315 N.C. 40, 337 S.E.2d 827 (1985), cert. denied, 476
       U.S. 1165, 90 L.Ed.2d 773 (1986) ..............................................................138

State v. Carroll, 356 N.C. 526, 573 S.E. 2d 899 (2002), cert. denied,
       156 L. Ed. 2d 640 (2003) ........................................................ 74, 83, 101, 112

State v. Chapman, 359 N.C. 328, 611 S.E. 2d 794 (2005). ...................................120
State v. Corn, 303 N.C. 293, 278 S.E.2d 221 (1981) ..............................................64

State v. Daughtry, 340 N.C. 488, 517, 459 S. E. 2d 747, 762 (1995),
       cert. denied, 516 U.S. 1079, 133 L.E.2d. 739 (1996) ...................................36

State v. Davis, 353 N.C. 1, 539 S.E.2d. 243 (2000) ................................................99
State v. Duke, 360 N.C. 110, 136-37, 623 S.E.2d 11, 28-29 (2005),
       cert. denied, ___ U.S. ___, 166 L.Ed.2d 96 (2006) ........................... 137, 141
State v. East, 345 N.C. 535, 553-54, 481 S.E. 2d 652, 664 (1997),
       cert. denied, 522 U.S. 918 (1997)..................................................... 93, 97, 99

State v. Fair, 354 N.C. 131, 166, 557 S.E.2d. 500, 524 (2001) cert.
       denied, 535 U.S. 1114, 153 L.Ed.2d. 162 (2002) ..........................................85

State v. Fletcher, 354 N.C. 455, 465-466, 555 S.E.2d 534, 541 (2001),
       cert. denied, 537 U.S. 846 (2002)................................................................126

State v. Fullwood, 323 N.C. 371, 395-97, 373 S.E.2d 518, 533 (1988),
       sentence vacated on other grounds, 494 U.S. 1022, 108 L.Ed.2d
       602 (1990) ....................................................................................................143
State v. Golphin, 352 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).................138

State v. Goodman, 298 N.C. 1, 25, 257 S.E.2d 569, 585 (1979) .................. 136, 138
State v. Gray, 347 N.C. 143, 172, 491 S.E.2d 538, 550 (1997) ..............................36

State v. Gregory, 342 N.C. 580, 467 S.E. 2d 28 (1996) ................ 116,117, 118, 119
State v. Handy, 331 N.C. 515, 419 S.E.2d 545 (1992) ............................................35
                                                             ix

State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977) ......................... 145, 146, 148
State v. Holden, 338 N.C. 394, 403, 450 S.E.2d 878, 883 (1994) ...........................92

State v. Howell, 335 N.C. 457, 439 S.E. 2d 116 (1994) ................................. 93, 100

State v. Huggins, 338 N.C. 494, 497-498, 450 S.E.2d 479, 481-82
       (1994) .............................................................................................................64
State v. Jaynes, 353 N.C. 534, 548-550, 549 S.E.2d 179, 191-192
       (2001), cert. denied, 535 U.S. 934 (2002) ...................................................126

State v. Jones, 339 N.C. 114, 153-54, 451 S.E. 2d 826, 847 (1994),
       cert. denied, 515 U.S. 1169, 132 L.E.2d. 873 (1995) ...................................37

State v. Jones, 355 N.C. 117, 126, 558 S.E.2d 97, 103(2002) 57,60,62,65,67,70,106

State v. Kemmerlin, 356 N.C. 446, 573 S.E.2d 870 (2002) .....................................36
State v. Lee, 335 N.C. 244, 439 S.E.2d 547, cert. denied, 513 U.S.
       891, 130 L.Ed.2d 162 (1994) .......................................................................145
State v. Lemons, 352 87, 92, 530 S.E.2d. 542, 545 (2000), cert.
       denied, 531 U.S. 1091, 148 L.E.2d. 698 (2001) ..................................... 83, 85

State v. Lloyd, 321 N.C. 301, 319, 364 S.E.2d 316, 330, sentence
       vacated on other grounds, 488 U.S. 807, 102 L.Ed.2d 18 (1988) ..............138

State v. Martin, 303 N.C. 246, 254, 278 S.E.2d 214, 220, cert. denied,
       454 U.S. 933, 70 L.Ed.2d 240 (1981) ................................................ 137, 138

State v. Matthews, 358 N.C. 102, 112, 591 S.E.2d 535, 542 (2004) .......... 58, 60, 67
State v. McHone, 174 N.C. App. 289, 620 S.E.2d 903 (2005) ..................... 110, 112

State v. McKoy, 323 N.C. 1, 372 S.E.2d. 12 (1988), vacated on other
       grounds, McKoy v. North Carolina, 489 U.S. 1010, 103
       L.Ed.2d. 180 (1990) .....................................................................................129

State v. Neal, 346 N.C. 608, 618, 487 S.E. 2d 734, 740 (1997), cert.
       denied, 522 U.S. 1125, 140 L.E.2d. 131 (1998) ..........................................133
State v. Nobles, 357 N.C. 433, 437, 584 S.E. 2d 765, 769 (2003) ..........................82

State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983) .............. 136,141,142,143,144
                                                    x

State v. Page, 215 N.C. 333, 1 S.E.2d. 887 (1939) ...............................................104
State v. Payne, 337 N.C. 505, 448 S.E.2d 93 (1994), cert. denied, 514
       U.S. 1038, 131 L.Ed.2d 292 (1995) ................................................... 143, 144

State v. Quesinberry, 319 N.C. 228, 354 S.E. 2d 446 (1987) ...... 92,94,97,98,99,100

State v. Reeves, 337 N.C. 700, 723, 448 S.E. 2d 802, 812 (1994), cert.
       denied, 514 U.S. 1114, 131 L. Ed. 2d 860 (1995) ................................ 54, 105

State v. Richmond, 347 N.C. 412, 424-26, 495 S.E. 2d 677, 683-84
       (1998), cert. denied, 525 U.S. 843, 142 L.E.2d. 88 (1998) ................ 126, 130

State v. Rivera, 350 N.C. 285, 514 S.E.2d 720 (1999) ............................................59

State v. Rogers, 355 N.C. 420, 462, 562 S.E.2d 859, 885 (2002) .................... 58, 67

State v. Rook, 304 N.C. 201, 225, 283 S.E.2d 732, 747 (1981), cert.
       denied, 455 U.S. 1038, 72 L.Ed.2d 155 (1982) ...........................................138

State v. Ruse, 319 N.C. 110, 146, 353 S.E.2d 352, 373 (1987) .............................138
State v. Sanderson, 336 N.C. 1, 10, 442 S.E.2d 33, 39 (1994) ................................59

State v. Simpson, 297 N.C. 399, 255 S.E.2d. 147 (1979) ......................................105

State v. Skipper, 337 N.C. 1, 446 S.E.2d 252 (1994), cert. denied, 513
       U.S. 1134, 130 L.Ed.2d 895 (1995) ............................................................145

State v. Stanley, 310 N.C. 332, 336, 312 S.E.2d 393, 395 (1984) ................ 137, 140
State v. Suggs, 86 N.C. App. 588, 359 S.E. 2d 24 (1987) .......................................97
State v. Syriani, 333 N.C. 350, 371, 428 S.E.2d 118, 119, cert. denied,
       510 U.S. 948, 126 L.E.2d. 341 (1993) ........................................................124

State v. Tennace, 109 Ohio St. 255, 847 N.E.2d. 386 (2006) ..................................48

State v. Thomas, 118 N.C. 1113, 24 S.E. 431, 434-35 (1896).................................64

State v. Thorne, ___ N.C. App. ___, 618 S.E.2d 790 (2005) ..................... 31, 41, 49

State v. Trull, 349 N.C. 428, 509 S.E.2d 178, cert. denied, 528 U.S.
       835, 145 L.Ed.2d 80 (1999) ................................................................ 134, 135
                                                        xi

State v. Vinson, 287 N.C. 326, 336-337, 215 S.E.2d 60, 68 (1975),
       vacated in part, 428 U.S. 902, 49 L.Ed.2d 1206 (1976) .............................125

State v. Wallace, 351 N.C. 481, 528 S.E.2d 326, cert. denied, 531 U.S.
       1018, 148 L.Ed.2d 498 (2000) ............................................................ 134, 135

Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984) .........................84
Tennard v. Dretke, 542 U.S. 274, 159 L. Ed. 2d 384 (2004) ............. 47, 55, 72, 128

Thompson v. City of Louisville, 362 U.S. 199[, 4 L. Ed. 2d 654, 80 S.
     Ct. 624] (1960).............................................................................................117

Tumey v. Ohio, 273 U.S. 510[, 71 L. Ed. 749, 47 S. Ct. 437] (1927) ...................116

Wiggins v. Smith, 539 U.S. 510, 537 156 L.E.2d. 471, 495 (2003).................. 35, 56

                                                STATUTES
N.C. Gen. Stat. § 7A-27(b) ........................................................................................4

N.C. Gen. Stat. § 8C-1, Rule 804(b) ........................................................................38
N.C. Gen. Stat. § 8C-1, Rule 401.................................................................. 101, 104

N.C. Gen. Stat. § 8C-1, Rule 402...........................................................................101

N.C. Gen. Stat. § 8C-1, Rule 403...........................................................................101
N.C. Gen. Stat. § 8C-1, Rule 404...........................................................................101

N.C. Gen. Stat. § 15-144 ........................................................................................134

N.C. Gen. Stat. § 15A-833(a) ..................................................................................54
N.C. Gen. Stat. § 15A-1443(a) ....................................................................... 72, 100

N.C. Gen. Stat. § 15A-1222 ...................................................................................111

N.C. Gen. Stat. § 15A-1232 ...................................................................................111

N.C. Gen. Stat. § 15A-1443(b) ................................................................... 40, 48, 72

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

N.C. Gen. Stat. § 15A-2000(a)(3) ...................................................................... 36,38
                                                            xii

N.C. Gen. Stat. § 15A-2000(d)(2)..........................................................................149
N.C. Gen. Stat. § 15A-2000(e)(2) ..................................................................... 71, 72

N.C. Gen. Stat. § 15A-2000(e)(3) ..................................................................... 71, 72

N.C. Gen. Stat. § 15A-2000(e)(5) ............................................................. 93, 96, 100

N.C. Gen. Stat. § 15A-2000(e)(6) ............................................................. 93, 96, 100
N.C. Gen. Stat. § 15A-2000(e)(9) ................................................................. 136, 137

N.C Gen. Stat. § 15A-2000(f)(1) .............................................................................72
N.C. Gen. Stat. § 15A-2000(f)(2) ......................................................... 89, 90, 91, 92

N.C. Gen. Stat. § 15A-2000 (f)(7) ...........................................................................72



                                         OTHER AUTHORITIES
Kenneth S. Broun et al, MCKORMICK ON EVIDENCE, 6th Edition, .................38

Kenneth S. Broun, BRANDIS & BROUN ON NORTH CAROLINA
     EVIDENCE, Sixth Edition ..........................................................................105
Rule 2 of the North Carolina Rules of Appellate Procedure ...................................83



                                CONSTITUTIONAL PROVISIONS
North Carolina Constitution, Art. I

        § 14 ......................................................................................................... 75, 85

        § 18 ............................................................................................... 85, 130, 140
        § 19 ...................................................... 32,42,50,75,101,114,121,136,140,150

        § 22 ..............................................................................................................135

        § 23 ....................................................................................... 75, 101, 103, 150

        § 24 ..................................................................................................... 114, 121
                                                          xiii

      § 27 ............................... 32, 42, 50, 75, 93, 100, 101, 114, 121, 136, 140, 150
      § 35 ................................................................................................................85

North Carolina Constitution, Art. IV

      § 2 ................................................................................................................136

      §13(2) ...........................................................................................................147

United States Constitution

      Art. IV, §2 ....................................................................................................150

      First Amendment .................................................................. 86, 137, 142, 145
      Fifth Amendment ................................................................................... passim
      Sixth Amendment ........................................................... 85, 86, 101, 120, 140
      Eighth Amendment ............................. 42, 45, 72, 93, 101, 120, 140, 144, 150

      Fourteenth Amendment ........................ 37, 42, 45, 86, 93, 101, 120, 140, 150
No. 211A06                                  TWENTY-NINTH DISTRICT
                  SUPREME COURT OF NORTH CAROLINA
           ****************************************************
STATE OF NORTH CAROLINA           )
                                  )
             v.                   )    From Henderson
                                  )
WILLIAM HENRY RAINES              )
           ****************************************************
                    DEFENDANT-APPELLANT‘S BRIEF
           ****************************************************

                        QUESTIONS PRESENTED

     I.      WHETHER THE TRIAL COURT ERRED IN NOT PERMITTING
             MR. RAINES TO INTRODUCE EVIDENCE AT THE
             SENTENCING HEARING THAT HE WAS SEXUALLY ABUSED?

     II.     WHETHER THE TRIAL COURT VIOLATED MR. RAINES‘
             RIGHTS UNDER THE STATE AND FEDERAL CONSTITUTIONS
             AT SENTENCING BY PROHIBITING THE DEFENSE FROM
             PRESENTING EVIDENCE ABOUT THE CHAOTIC AND
             ABUSIVE NATURE OF MR. RAINES‘ FAMILY AND THE
             INJURIOUS ENVIRONMENT IN WHICH HE GREW UP?
     III.    WHETHER THE TRIAL COURT ERRED IN OVERRULING MR.
             RAINES‘ OBJECTION AT SENTENCING TO TESTIMONY FROM
             A MEMBER OF THE VICTIM‘S FAMILY ABOUT HOW THE
             JURY SHOULD CONSIDER EVIDENCE ABOUT MR. RAINES‘
             ABUSIVE BACKGROUND?

     IV.     WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY
             OVERRULING DEFENDANT‘S OBJECTION TO IMPROPER,
             SPECULATIVE CLOSING ARGUMENT IN WHICH A
             PROSECUTOR IMPUGNED THE INTEGRITY OF DEFENSE
             COUNSEL AND MR. RAINES BY CONTENDING THAT THEY
             WOULD HAVE DENIED MR. RAINES‘ GUILT IF THEY COULD
             HAVE GOTTEN AWAY WITH IT?
                          2

V.    WHETHER THE TRIAL COURT ERRED BY NOT INTERVENING
      EX MERO MOTU TO PREVENT THE PROSECUTORS FROM
      MAKING A GROSSLY IMPROPER CLOSING ARGUMENT THAT
      ENCOURAGED THE JURY TO IGNORE NORTH CAROLINA
      LAW ABOUT DELIBERATION AS AN ELEMENT OF FIRST-
      DEGREE MURDER?

VI.   WHETHER THE TRIAL COURT ERRED BY NOT INTERVENING
      EX MERO MOTU TO PREVENT THE PROSECUTORS FROM
      MAKING GROSSLY IMPROPER CLOSING ARGUMENTS
      DURING THE PENALTY PHASE ABOUT WHAT THE HOLDERS
      SAID TO MR. RAINES DURING +THE ATTACKS AND ABOUT
      WHAT MR. RAINES WAS THINKING DURING THE TRIAL,
      WHERE THESE ARGUMENTS WERE MERE SPECULATION
      WITH NO BASIS IN THE EVIDENCE?
VII. WHETHER THE TRIAL COURT ERRED BY NOT INTERVENING
     EX MERO MOTU TO PREVENT A PROSECUTOR FROM
     MAKING A GROSSLY IMPROPER STATEMENT DURING
     PENALTY PHASE CLOSING ARGUMENT THAT THAT ONLY
     EVIDENCE ABOUT THE CRIME ITSELF CAN BE CONSIDERED
     AS MITIGATING?

VIII. WHETHER THE TRIAL COURT COMMITTED PLAIN ERROR
      IN ALLOWING THE BY THE STATE TO INTRODUCE
      HEARSAY TESTIMONY ABOUT MR. RAINES‘ BEHAVIOR IN
      JAIL DURING THE PENALTY PHASE THAT VIOLATED THE
      CONFRONTATION CLAUSE, AND WHETHER DEFENSE
      COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF
      COUNSEL BY NOT OBJECTING TO THAT TESTIMONY ON
      THE BASIS OF THE CONFRONTATION CLAUSE?
IX.   WHETHER THE TRIAL COURT ERRED BY REJECTING
      DEFENDANT‘S REQUEST TO GIVE A PEREMPTORY
      INSTRUCTION ON THE (F)(2) MITIGATING CIRCUMSTANCE,
      WHERE UNCONTROVERTED EVIDENCE PROVED THAT MR.
      RAINES WAS UNDER THE INFLUENCE OF A MENTAL OR
      EMOTIONAL DISTURBANCE AT THE TIME OF THE
      KILLINGS?
X.    WHETHER THE TRIAL COURT VIOLATED THE STATE AND
      FEDERAL CONSTITUTIONS AND N.C. GEN. STAT. 15A-2000
                         3

      BY    SUBMITTING    DUPLICATIVE     AGGRAVATING
      CIRCUMSTANCES WHEN IT SUBMITTED BOTH THE
      AGGRAVATING CIRCUMSTANCE THAT THE CAPITAL CASE
      WAS COMMITTED FOR PECUNIARY GAIN AND THAT THE
      CAPITAL CRIME WAS COMMITTED IN THE COMMISSION OF
      A ROBBERY?

XI.   WHETHER THE TRIAL COURT COMMITTED PLAIN ERROR
      IN ALLOWING MEMBERS OF THE VICTIMS‘ FAMILY TO
      TESTIFY ABOUT IRRELEVANT BUT HIGHLY PREJUDICIAL
      MATTERS CONCERNING HOW FAMILY MEMBERS REACTED
      TO HEARING ABOUT THEIR RELATIVES‘ DEATHS?

XII. WHETHER THE TRIAL COURT ERRED IN OVERRULING MR.
     RAINES‘ OBJECTION TO A GUILT-INNOCENCE PHASE
     VERDICT FORM THAT WAS UNCONSTITUTIONALLY
     SUGGESTIVE AND CONFUSING?

XIII. WHETHER MR. RAINES WAS DENIED HIS RIGHT TO A FAIR
      AND IMPARTIAL JURY UNDER THE STATE AND FEDERAL
      CONSTITUTIONS BECAUSE A PROSPECTIVE JUROR
      ANNOUNCED IN JURY SELECTION THAT WHAT HE HAD
      READ ABOUT THE CASE WAS ―PRETTY INCRIMINATING‖
      AND THAT COMMENT WAS HEARD BY JURORS WHO WERE
      ACTUALLY SEATED IN THE CASE, AND WHETHER THE
      TRIAL COURT COMMITTED PLAIN ERROR BY NOT EITHER
      DECLARING A MISTRIAL OR, IN THE ALTERNATIVE,
      DISMISSING THE PROSPECTIVE JURORS WHO HEARD
      THOSE COMMENTS?

XIV. WHETHER MR. RAINES WAS DENIED HIS RIGHT TO HAVE A
     FAIR AND IMPARTIAL JURY CONSIDER HIS SENTENCE
     BECAUSE HE WAS DENIED THE OPPORTUNITY TO
     ADEQUATELY     AND   THOROUGHLY      VOIR    DIRE
     PROSPECTIVE JURORS ABOUT THEIR VIEWS ON CAPITAL
     PUNISHMENT?

XV. WHETHER THE TRIAL COURT ERRED BY TRYING
    DEFENDANT AND ENTERING JUDGMENT AGAINST
    DEFENDANT FOR FIRST-DEGREE MURDER, SINCE THE
    ―SHORT-FORM‖ INDICTMENTS FOR MURDER ALLEGED
    ONLY THE ELEMENTS OF SECOND-DEGREE MURDER?
                           4

XVI. WHETHER THE TRIAL COURT COMMITTED PLAIN ERROR IN
     SUBMITTING THE ―ESPECIALLY HEINOUS, ATROCIOUS, OR
     CRUEL‖ AGGRAVATING FACTOR TO THE JURY BECAUSE
     POST-RING, VAGUENESS AND OVERBREADTH CANNOT BE
     CURED BY APPELLATE NARROWING?
XVII. WHETHER THE TRIAL COURT COMMITTED PLAIN ERROR
      BY INSTRUCTING THE JURY TO ANSWER ―YES‖ FOR ISSUE
      THREE EVEN IF THE JURY WERE TO FIND THAT THE
      WEIGHT OF THE MITIGATING CIRCUMSTANCES EQUALED
      THE WEIGHT OF THE AGGRAVATING CIRCUMSTANCES?

XVIII.     WHETHER THE TRIAL COURT COMMITTED PLAIN
      ERROR UNDER EIGHTH AND FOURTEENTH AMENDMENTS
      BY ALLOWING THE JURY TO REFUSE TO GIVE EFFECT TO
      MITIGATING EVIDENCE IF THE JURY DEEMED THE
      EVIDENCE NOT TO HAVE MITIGATING VALUE?
XIX. WHETHER THE TRIAL COURT'S CAPITAL SENTENCING JURY
     INSTRUCTIONS, WHICH DEFINED DEFENDANT'S BURDEN
     OF PERSUASION TO PROVE MITIGATING CIRCUMSTANCES
     AS EVIDENCE THAT "SATISFIES" EACH JUROR, WERE PLAIN
     ERROR THAT VIOLATED DUE PROCESS AND THE EIGHTH
     AND FOURTEENTH AMENDMENTS BECAUSE THAT
     DEFINITION DID NOT ADEQUATELY GUIDE THE JURY'S
     DISCRETION ABOUT THE REQUISITE DEGREE OF PROOF?
XX. WHETHER THE TRIAL COURT COMMITTED PLAIN ERROR
    BY INSTRUCTING THE JURORS FOR ISSUES THREE AND
    FOUR THAT EACH JUROR ―MAY‖ CONSIDER MITIGATING
    CIRCUMSTANCES FOUND IN ISSUE TWO?

XXI. WHETHER THE TRIAL COURT ERRED BY REFUSING TO
     DISCLOSE TO THE DEFENSE ANY INFORMATION IN DEPUTY
     JERRY RICE‘S PERSONNEL FILE AFTER THE COURT
     EXAMINED THE FILE UNDER SEAL?
XXII. WHETHER THE TRIAL    COURT ERRED BY SENTENCING
      DEFENDANT TO DEATH   BECAUSE THE DEATH PENALTY IS
      INHERENTLY CRUEL     AND UNUSUAL; THE NORTH
      CAROLINA   CAPITAL     SENTENCING    SCHEME    IS
      UNCONSTITUTIONALLY   VAGUE AND OVERBROAD; AND
                                       5

            THE DEATH SENTENCE IN THIS CASE WAS NOT SUPPORTED
            BY THE EVIDENCE, WAS DISPROPORTIONATE, AND WAS
            IMPOSED UNDER THE ARBITRARY INFLUENCE OF PASSION,
            PREJUDICE, AND OTHER ARBITRARY FACTORS?



                        STATEMENT OF THE CASE
      These cases were tried in a capital trial at the August 22, 2005 Criminal

Session of the Superior Court of Henderson County, the Honorable Ronald K.

Payne, presiding, on indictments charging defendant with one count of murder of

Pamela K. Holder (02 CRS 57664), one count of murder of Phillip L. Holder (02

CRS 57665), and one count of robbery with a dangerous weapon of both Mr. and

Mrs. Holder (03 CRS 307). After the close of evidence during the guilt-innocence

phase, Judge Payne dismissed the charge of robbery with a dangerous weapon as to

Mrs. Holder. On September 6, 2005, defendant was convicted of two counts of

first-degree murder and one count of robbery with a dangerous weapon of Mr.

Holder. On September 9, 2005, defendant was sentenced to death on both counts

of first-degree murder and to imprisonment for a concurrent term of 100 to 129

months for robbery with a dangerous weapon. Defendant entered notice of appeal.


         STATEMENT OF GROUNDS FOR APPELLATE REVIEW
      Defendant appeals pursuant to N.C. Gen. Stat. § 7A-27(b) from a final

judgment of Henderson County Superior Court.
                                           6

                         STATEMENT OF THE FACTS

      Billy Raines admitted responsibility for killing Philip Holder -- Billy‘s

closest friend for 16 years, since childhood -- and Philip‘s wife, Pamela, on

December 11, 2002, in their trailer in Etowah. To understand why Mr. Raines

exploded in anger that night and killed Philip and Pam, it is necessary to

understand the physical and emotional abuse, the neglect, and the extreme poverty

that defined and shaped Mr. Raines‘ life until he was 14 years old – when Philip‘s

family took him into their home to live.


      Two of Mr. Raines‘ half-sisters, two aunts, two teachers, a psychologist, and

a social worker testified about Billy‘s childhood.


Neglect


      Billy Raines was born in Hendersonville in 1975.         He was an active,

inquisitive child. (Tp. 1466) His parents are Dick and Barbara Raines. He is the

second of three children of Dick and Barbara Raines; his full siblings are Jamie

and Angel Raines. Barbara Raines also has three children from an earlier marriage

who lived with their grandmother because Barbara did not want to take care of

them. Billy, Jamie, and Angel stayed with their grandmother on a regular basis

when Dick and Barbara Raines could not take care of them.


      Dick Raines was an alcoholic who died of lung cancer and emphysema in

1988, when he was 45. He never had a steady job. (Tp. 1395) Barbara was a
                                        7

waitress who worked long hours. The family needed food stamps. Once, when the

family had no food, the children had to ask neighbors for food. The family moved

frequently during Billy‘s childhood because they could not afford stable housing.

They were evicted from apartments when Billy was only eight or nine months old

and when he was three years old. (Tpp. 1452-54) During at least ten periods of

time during Billy‘s childhood, they had to live with Dick‘s brother and sister-in-

law, Frank and Rosemary Raines, because they could not find their own housing –

once for two years. (Tpp. 1397-98) Ten people normally lived in Frank and

Rosemary‘s three-bedroom, one-bathroom house – and sometimes as many as 22

people. (Tpp. 1398-99, 1458) When Billy was two or three years old, his family

had to live in a tent on Frank and Rosemary‘s property for six months. (Tpp.

1398-1401, 1458)


      The family lived in rundown houses and apartments. In their various homes,

dirty clothes were scattered everywhere, dirty dishes with moldy food and bags of

trash were in the foul-smelling kitchen, and flour and cornmeal were spread on the

floor throughout the house. (Tpp. 1394-97, 1420-21, 1457, 1464) Barbara often

had to work double shifts; she would leave the three children at home with Dick,

who would pass out, drunk. Once, when Billy was only three years old and his

brother and sister were only five and two years old, Barbara came home and saw

flour, cornmeal, and buttermilk all over the house – Dick had passed out, drunk,

and the children were trying to make biscuits because they were hungry. (Tp.
                                          8

1462) Another time Barbara saw a fire in the house when she came home – again,

Dick was drunk and had passed out, and three-year-old Billy had accidentally

started a fire when he tried to light the stove with a piece of burning paper to get

some heat. On another occasion, Barbara came home to find that all three children

had lost consciousness because of smoke in the house – while Dick was drunk and

had passed out, Billy had accidentally swung Angel‘s pants against the stove,

starting a smoldering, smoky fire. (Tp. 1462)


      One of their houses was infested by large rats. Medical records show that

Billy‘s sister, Angel, was bitten by a rat. His brother, Jamie, slept with the blanket

over his head at night to protect himself from rats. (Tp. 1457)


      Billy suffered more from neglect as a child than either Jamie or Angel. His

clothes were torn; he did not have a jacket in cold weather; he went barefoot so

often that his feet typically were caked with dirt; he did not bathe or shower; his

body smelled; his face was dirty; his hair was unwashed and matted; and his teeth

were rotten.   In March 1976, when Billy was only 16 months old, a Health

Department visited the Raines house and noticed that Billy went in and out of the

house dressed only in a T-shirt and training pants, and without shoes; the nurse had

to tell Barbara to dress him adequately. (Tpp. 1452-53)


      Barbara‘s own sisters stated that Barbara did not show any warmth toward

Billy. She showed some affection for Jamie and Angel. (Tpp. 1465-66)
                                         9

Physical and Emotional Abuse


      Billy‘s parents and grandmother singled him out for particularly harsh

physical and emotional abuse when he was as young as six, seven, and eight years

old. For no apparent reason, Barbara would punch him in the face and call him a

―little bastard.‖ (Tp. 1377) If he ran from her, ―she would beat him from head to

toe with whatever she could get in her hands at that time,‖ such as a stick or a

plastic baseball bat; once she called him ―a little SOB‖ and beat him with a plastic

bat. (Tpp. 1377-78, 1418) If Billy did not do his chores, Barbara beat him with

her fist, a broom, or a shoe. Once, when Billy was 11 years old, Barbara punched

him in the face for not washing the dishes properly. (Tp. 1387) She would call

Billy ―the little red-headed SOB.‖ (Tp. 1466)


      Dick also singled Billy out for abuse. When Billy came home from school,

Dick would grab him, beat him, and yell profanities at him. (Tp. 1456) He would

beat Billy with his own oxygen hose. (Tp. 1463) Billy‘s half-sister, Stacy, once

saw Dick ―beat the hell out of Billy with a belt.‖ (Tp. 1459) Dick would order

Billy to get him a beer, saying, ―Go get me a fucking beer.‖            (Tp. 1459)

Sometimes Dick was so lazy that he would urinate into a jar and order Billy to

empty the jar. (Tp. 1460)


      Barbara decided to separate from Dick after an incident in which Dick beat

all three children with an electrical cord and a board while Barbara was at work in
                                         10

a restaurant. Billy‘s brother ran to the restaurant to tell her that Dick ―had gone

crazy and was beating all three of them with an electrical cord.‖ Dick later denied

that he had beaten them. (Tp. 1463)


      When Billy arrived at his grandmother‘s house for weekends, his half-sisters

Stacy and Tammy saw that he was bloody and covered with welts from whippings

with a hickory stick. (Tpp. 1353, 1356, 1381)     Sometimes when Billy‘s parents

brought him to his grandmother‘s house for weekend stays, empty beer cans fell

out of their van when they opened the door. (Tp. 1353)


      When Billy was just six or seven years old, his parents, grandmother, and

uncles called him ―motherfucker,‖ ―son of a bitch,‖ ―the little redheaded SOB,‖

and ―bastard.‖ (Tpp. 1354-58, 1466) They often called him ―Billy the faggot.‖

(Tp. 1357) Once Billy‘s grandmother whipped all of the children at her house, but

she was particularly vicious with Billy: she grabbed him by his hair, slammed him

to the ground, and beat him on his head, face, and back.         His grandmother

sometimes slapped Billy to the floor and called him ―little mother-fucker.‖ She

sometimes whipped him with a belt. (Tpp. 1358-62) Once, when Billy was eight

and his half-sister Tammy Pruitt was 13, their grandmother forced Tammy to whip

Billy with a hickory stick. (Tp. 1380)


      Billy never received any counseling or therapy for the abuse and neglect he

suffered as a child with his own family. (Tp. 1504) No adults ever intervened to
                                         11

tell Billy‘s family to stop the physical and emotional abuse. (Tp. 1363) According

to his half-sister, Stacy Pruitt Newall, Billy became distant and put his head down

in response to abuse. She described Billy as a child as ―a distant, distant person.‖

She said that Billy ―wasn‘t happy. He was not, you know, full of joy like kids are

supposed to be, have good memories of childhood. He was just very silent and

quiet, very quiet.‖ (Tp. 1369) Stacy testified, ―I guess he just felt that he just

wasn‘t fit to be alive. I have no idea what he was thinking. But to my eyes his

demeanor just told me that he was just – he looked like he felt worthless.‖ (Tp.

1363) Stacy explained that ―Billy was treated like crap, constantly mentally and

physically abused.‖ (Tp. 1355) Stacy observed,


             Billy – I‘m surprised, I just can‘t believe that he‘s lasted
             as long as he has. I mean, it‘s just – what I‘ve seen and
             what I know, and God in heaven knows, that he has been
             through hell in his childhood. And no kid deserves to be
             treated that way.
(Tp. 1363)


      Dick and Barbara had an angry, violent relationship during Billy‘s

childhood. Once, when Dick attacked her, Barbara struck him back with a baseball

bat, causing a wound that required nine stitches. On other occasions, Barbara hit

Dick in the mouth with an iron and struck him on the head with a frying pan.

(Tpp. 1381, 1461)
                                        12

      Barbara separated from Dick in 1985, when Billy was 10 years old. Jamie

and Angel stayed with Barbara, but Billy moved with Dick. (Tp. 1367) At first

they lived with Frank and Rosemary. During that period, Dick was arrested.

(When defense counsel asked Rosemary what crime Dick had been arrested for,

the State objected, and the trial court sustained the objection). (Tp. 1411) Later,

Dick and Billy moved to a trailer. Billy helped Dick with his breathing equipment

and bought groceries. Billy had to move back with Barbara and her new husband

after Dick died in 1988. He did not want to live with Barbara; he told an aunt,

Betty Patterson, that ―it would be pure hell‖ because Barbara‘s new husband would

beat him. Billy begged Betty to let him live with her, but Barbara would not let

him. (Tpp. 1424-25, 1429)


      Billy‘s half-sister, Stacy Newall, testified that she had heard that Dick

Raines sexually molested Billy, Angel, and Jamie, but that she did not personally

witness such sexual abuse. (Tpp. 1366, 1372) However, the trial court prohibited

testimony by defense witness Deborah Grey, a social worker, that Angel told her

that she had seen Dick Raines sexually abuse Billy. (Tpp. 1470-73)


Education


      Billy‘s education was also marked by instability.        He had to repeat

kindergarten and seventh grade. As a result of his family‘s frequent moves, Billy

had to change schools nine times – including three different schools in first grade
                                           13

alone. (Tpp. 1483-87) As early as 1986, when Billy was in the fourth grade, a

school psychological evaluation showed that he had serious emotional and

classroom behavior problems, that his intellectual ability was in the low-average

range, and that his fine motor skills were far below age level. Billy‘s emotional

problems included a low tolerance for frustration, insecurity, social isolation,

dependency, lack of control, and little warmth. (Tpp. 1489-90) Billy was placed

in a program for behaviorally and emotionally handicapped children (BEH). (Tp.

1491)


        In June 1987, a school report stated that Billy had made little progress due to

his behavioral and emotional handicap. (Tp. 1491-92) In March 1989, when Billy

was 13 years old and in the seventh grade – and after his father had died and he

had to move back with his mother -- a school psychological evaluation stated that

Billy was friendly and cooperative, but that sometimes he could be disruptive and

stubborn and that he had a short temper. The report stated that he had ―clinical

indications of masked depression and internalized sources of anxiety which appear

to be related to his recent change in . . . family circumstances.‖ (Tpp. 1056, 1494-

95) Billy had failing grades in all of his academic subjects, and the report noted

that Billy functioned in ―the borderline range of intellectual ability‖ and that his

academic achievement in basic subjects was ―well below average.‖ (Tpp. 1056,

1495) Billy had to repeat seventh grade. During this period, Billy told his mother

that he was thinking of suicide. (Tp. 1057)
                                          14

      Billy received another school psychological evaluation in March 1992, when

he was 16 years old and in ninth grade (when he was living with the Philip‘s

family). The report noted that Billy felt inadequate and ineffective in personal

relations, that he had poor coping abilities and poor control over his emotions and

bodily drives, that he was impulsive and easily provoked, and that he sometimes

acted out. For example, minor problems, such as leaving his lunch ticket at home,

could cause Billy to lose his temper and to act out. (Tpp. 1059-61, 1500-01) The

report stated that Billy had aggressive and hostile feelings that resulted from a

combination of unsettling life events, feelings of inferiority and frustration with his

environment and his limitations.‖ (Tp. 1500) Billy did not participate in class and

made inappropriate noises. He had a low-average full-scale IQ of 85, and his

grades ranged from Cs to Fs. His teacher thought that Billy was failing courses

mostly because of carelessness, lack of following directions, difficulty in

organizing materials, and reluctance to start tasks. (Tp. 1500)


      Ms. Beatrice Burns and Ms. Pat Davis were two of Billy‘s teachers from the

seventh through ninth grades. They testified that Billy was poorly dressed in

school. One teacher felt sorry for Billy when she visited his family‘s trailer – it

was dirty and run-down, and there was trash in the yard. The teachers said that

Billy was a very friendly and likeable boy who needed attention and who

sometimes got frustrated and upset. He did not hurt other students. The BEH

program was designed to help emotionally or behaviorally handicapped children,
                                         15

like Billy, to avoid disruptive behavior.      Billy sometimes admitted that his

attention-getting misconduct was wrong and said that he would try to improve his

conduct. (Tpp. 1430-45)


Living with the Holder Family


      Billy‘s life took a major turn for the better during middle school, when he

met Philip Holder. At that time, Billy lived with his mother in a trailer near the

Holders‘ house. Philip‘s mother, Patricia Ann Holder, had occasionally taken

heating oil to the Raines family, beginning one winter night ―when it was zero

weather‖ and Mrs. Holder had learned that Barbara Raines and her children had no

oil. Billy and Philip (who was a year older than Billy) played together, and Billy

sometimes spent the night with the Holders. (Tpp. 427-28, 439-40)


      Eventually, when Billy was in seventh grade, the Holders invited Billy to

live with them. (Tpp. 428, 441) Barbara Raines told Mrs. Holder, ―Yes, he can

stay, and I don‘t care how long he stays.‖ (Tp. 428) When Billy moved in with

the Holders, Mrs. Holder cut Billy‘s hair, which she described as being ―about two

foot long.‖ (Tp. 444) The Holders bought him clothes and shoes. (Tp. 428) Billy

and Philip shared a bunk bed, (Tp. 428), and they played together every day after

school. When they were older, Billy and Philip went hunting and fishing together.

(Tpp. 444-45) Billy went to church with the Holders. (Tpp. 445, 640-47) Mrs.

Holder testified that Billy had a natural talent with engines. (Tp. 430)
                                       16

      The 1992 school report noted that Billy ―likes living where he is living now

and he starts every day in a good frame of mind because as he said, the people he

lives with are Christian and are good to him.‖ (Tp. 1501) Mrs. Holder made sure

that he was clean, that he dressed appropriately for school, and that he ate well.

Billy ―experienced house rules, expectations that he would do his share,

encouragement to do well in school, and inclusion in the extended Holder family

activities and religious values.‖ (Tp. 1061) Mrs. Holder said that Billy ―was just

one of us‖ (Tp. 430) and that she took care of him as if he were Philip‘s brother.

(Tp. 444) Billy felt that the Holders were ―more of a family than my own‖ and

that Mrs. Holder was ―more of a mother to me than my own.‖ (Tp. 1061)


      Despite his continuing emotional and behavioral problems, Billy believed

that his life was improving after he had moved in with the Holders, and he was

hopeful about the future.    Billy graduated from high school in 1995 – an

achievement he credits to the support he received from Philip‘s mother, Mrs.

Holder.


Life After High School


      Mr. Raines continued to live with the Holders after high school. For about a

year, he lived with Mrs. Holder‘s elderly father. Mrs. Holder testified that Mr.

Raines helped her father. She testified, ―Billy really could be a good person when

he wanted to be.‖ (Tp. 447) Mrs. Holder said, ―Billy can be a very special
                                        17

person.‖ (Tp. 456) Philip married Pam in 1994 (when Billy was in eleventh

grade). Pam was mentally retarded. Philip worked for a bottling company, and

Pam worked for a janitorial company that served a mill. Philip and Pam had a son,

who lived with Philip‘s parents during the week and with Philip and Pam on

weekends. Although Billy resented Pam for interfering with his close friendship

with Philip, Billy got along with Pam, and he developed a good, close relationship

with their son. Philip and Billy continued to hunt, fish, and hike together. Billy

sometimes went on vacations with Philip and Pam. After Philip and Pam were

killed, their son went to live with Philip‘s parents. (Tpp. 396-399, 424, 449-52,

457-60, 464, 681-83, 1314)


      Mr. Raines moved out of the Holders‘ home when he was 20 or 21, and his

life deteriorated into a downward spiral of sporadic employment, substance abuse,

and crimes committed to obtain money for drugs. Mr. Raines‘ substance abuse had

roots in childhood. His father first gave him alcohol to drink when Billy was only

eight years old, and Billy began to smoke marijuana when he was only eight or

nine. (Tpp. 1066, 1511) Billy began to use ephedrine in high school because it

made him feel more alert; by the time he graduated, he was using 60 tablets a day.

(Tp. 1511)


      Mr. Raines had several jobs after high school. Unfortunately, he drank,

smoked marijuana, and used crack. Although he was a hard and respectful worker,

he sometimes did not show up for work due to alcohol or drug use. (Tpp. 451-52,
                                        18

1025, 1512) Mr. Raines also began to get in trouble with the law after high school.

In 1996 he was convicted for misdemeanor larceny. He then had convictions for

unauthorized use of a vehicle, larceny from the person, misdemeanor breaking or

entering, and passing a worthless check. He was convicted of escape in 2001; he

had left an inmate work crew and was arrested three hours later. (Tpp. 1509-16)


      Mr. Raines was released from prison in July 2002. He had no place to live,

and Philip and Pam invited him to live with them in their trailer. In September

2002, Mr. Raines was fired from his job at a bottling plant after failing a drug

screening test. (Tpp. 1069-70) He worked on cars and on remodeling a mobile

home for Philip and Pam. Unfortunately, he resumed daily use of marijuana and

ephedrine. (Tpp. 1068-70)


The Crimes


      On December 10, 2002, Mr. Raines could not buy marijuana from his usual

supplier. That afternoon and evening, he bought and used $300 to $400 of crack.

It was his first use of crack since his release from prison in July 2002. Then Pam

gave him $50, and he bought more crack. That evening, Billy called Philip‘s

cousin, Audrey Pace, and her son, David Pace. Mr. Raines and David had been

friends for years. Mr. Raines called to say he was changing his life, and that he

never wanted to return to prison. He admitted that in 2000, he had stolen David‘s

wallet, which contained money and rings. Mr. Raines had denied the theft in 2000,
                                        19

but on December 10, he called to admit and apologize for the theft. He said that he

wanted to pay David back for the pain he had caused by the theft. He talked fast;

the Paces thought he sounded like he was on drugs. (Tpp. 696-700, 701-08, 1025,

1078-82)


      That night, Mr. Raines told Pam that his stomach was hurting. Pam let him

borrow her pickup truck and gave her credit card to him to buy medicine from the

hospital. (Tp. 1081) However, he picked up a friend named Heath Rice instead,

and they bought and used more crack. They then drove to a Wal-Mart in Asheville

to buy video games to sell for crack. He tried to pay for the games with Pam‘s

credit card, telling the clerk that it was his sister‘s card.   The clerk became

suspicious and called security guard Scott Early, who was an off-duty police

officer. Early called Philip and Pam, and they said that Pam had given her credit

card to Mr. Raines to buy medicine. Philip told Early that he and Mr. Raines were

close friends, that he did not want to press charges against Mr. Raines, and that he

would pick Mr. Raines up. Early let Rice leave the store. Philip and Pam arrived

about an hour later in Philip‘s Nissan truck. They picked up Mr. Raines and drove

home; Mr. Raines rode with Philip, and Pam drove her own truck. (Tpp. 849-61,

1084-85)


      Philip cursed at Mr. Raines on the drive home, complaining about Mr.

Raines‘ drug use and his inability to hold down a job. Mr. Raines demanded that

Philip let him out of the truck, but Philip refused. (Tp. 1086) Philip was still
                                         20

angry when they arrived home. Philip ordered Mr. Raines to sleep outside in the

cold and gave him a sleeping bag. Mr. Raines went to a shed that had a small

heater and smoked the small amount of crack he had left. (Tpp. 1089-90)


        After 15 to 20 minutes, Mr. Raines returned to the trailer to find money to

buy more crack. He brought a wrench with him; he planned to tie Philip and Pam

up. (Tp. 1090) He knocked on the door, saying he had to use the bathroom. They

let him in, and he went to the bathroom. When he left the bathroom, Philip and

Pam were sitting in chairs in the living room. Mr. Raines struck Philip and Pam

each multiple times in the head with the wrench. He then went to the bedroom,

where Philip kept a large number of guns. He took two guns, returned to the living

room, and shot both of them. Philip was shot twice in the head; another bullet hit

his left palm and fragmented; fragments struck his chest and his face. Pam was

shot in the head and shoulder. Mr. Raines then took guns, money, Philip‘s driver‘s

license and credit card, a checkbook, and left the trailer. (Tpp. 714-30, 1090-96)

Mr. Raines could not believe that he had killed Philip and Pam and thought he

should kill himself, but the prospect of buying more crack kept him going. (Tp.

1528)


        Mr. Raines drove away in Philip‘s Nissan truck. That morning, he drove to

a familiar, nearby convenience store, Hyder‘s Country Cupboard, and tried to cash

a check on Philip‘s account for $100; store owner Fred Hyder said he did not have

enough money to cash the check. Mr. Raines asked about writing a check for a
                                         21

lower amount, but Mr. Hyder said Philip would have to sign the check in person.

Mr. Raines made a small purchase using Philip‘s credit card and left. (Tpp. 592-

602, 790-91) He drove to Asheville, where he went to Asheville Auto Sales. He

sold the Nissan‘s new camper cover and some rifles to the manager, William

Hyatt, for $200 to $250. Mr. Raines left, returned later in the morning, and sold

Hyatt a dozen more rifles for $600 to $900. Hyatt called the police on December

12, when he saw Mr. Raines‘ photograph on the TV news. (Tpp. 603-19). On

December 12 and 13, Mr. Raines used Philip‘s credit card to withdraw money at an

ATM; to make purchases at other convenience stores, three Wal-Marts, and a

Toys-R-Us in Asheville; and to pay for a motel room in Asheville for the night of

December 12-13. (Tpp. 792-830)


      When neither Philip nor Pam appeared at work on December 11, co-workers

called their relatives, who tried repeatedly to contact Philip and Pam.         That

afternoon, Philip‘s cousin, Jill Gilbert, and her 17-year-old son Austin Gilbert went

to Philip‘s and Pam‘s trailer in Etowah. Austin went in through a window and saw

the bodies of Philip and Pam in the living room. Austin opened the door for Jill,

and she saw the bodies. She called her husband and asked him to call 911. (Tpp.

480-500)


      Law enforcement officers soon arrived at the Holders‘ home. Philip‘s body

was on the living room floor; Pam‘s body was in a chair in the living room.

Officers saw shell cases and boxes scattered on a bed, and they noticed that a gun
                                        22

safe was open and empty. They found three shell casings on the floor, and they

also found one bullet lodged in the chair in which Pam had been sitting. Officers

found Philip‘s and Pam‘s wallets in the master bedroom. There were no credit

cards or identification in Philip‘s wallet; there were no credit cards in Pam‘s

wallet. The officers did not find keys or a checkbook. (Tpp. 516-24, 533-34, 550-

65, 581-82, 588)


      Dr. Donald Jason, a pathologist, performed the autopsies on Philip and Pam.

He found that Philip had six blunt force wounds on his head, causing fractures to

his skull. (Tpp. 714, 739) Philip had two gunshot wounds to the head, one to the

back and one to the front; either of these wounds would have caused immediate

loss of consciousness and would have been fatal. (Tpp. 715, 741) In addition, one

bullet hit his left palm and fragmented; fragments hit him in the arm, chest, and

face, not causing significant internal injury. (Tpp. 715-16) In Dr. Jason‘s opinion,

Philip was struck in the head with blunt force before he was shot in the back of the

head. (Tp. 715) Also, in Dr. Jason‘s opinion, Philip was conscious when he was

shot through the hand. (Tp. 738) However, Dr. Jason also testified that the blunt

force blows to Philip‘s head could have caused Philip to lose consciousness or to

be severely stunned. (Tp. 736) Dr. Jason could not determine how long Philip

would have felt pain after the blunt force blows had begun. (Tp. 737)


      Dr. Jason found that Pamela had four lacerations on her head resulting from

blunt force injury. None of those wounds involved fractures. (Tpp. 721-22) Pam
                                         23

was shot twice, once in the shoulder and once in the head. (Tp. 722) The nature of

Pam‘s shoulder exit wound is consistent with her being shot while she was leaning

back in the chair. (Tpp. 722-23) Dr. Jason could not determine which of Pam‘s

head injuries occurred first -- the blunt force injuries or the gunshot wound. (Tpp.

734-35) Dr. Jason could not determine whether the first blow to her head made her

lose consciousness.    (Tp. 732)      He could not determine whether Pam was

conscious when she was shot in the shoulder. (Tp. 733) However, the gunshot

wound in the head caused her to lose consciousness immediately. (Tp. 732)


      Relatives of Philip and Pam testified about the emotional impact of the

killings on members of their families, particularly on their parents, siblings, and

son. (Tpp. 408, 448-49, 1305-19)


      On the morning of December 13, a truck driver heard over the radio that

North Carolina authorities were looking for Philip‘s Nissan. The driver saw the

Nissan in a supermarket parking lot in Greenville County, South Carolina and told

the store manager. The manager called 911. Two Greenville County deputies

arrested Mr. Raines, who was sitting in the truck.        Mr. Raines surrendered

peacefully and cooperated with the deputies. Mr. Raines waived his right to

contest extradition, agreeing to be returned to North Carolina to face murder

charges in this case. (Tpp. 746-63)
                                         24

      Detective Walter C. Harper of the Henderson County Sheriff‘s Department

transported Mr. Raines back to Hendersonville.        (Tp. 907)    During booking,

Detective Harper conducted a gunshot residue test on Mr. Raines, and Mr. Raines

asked why. When Detective Harper explained that he had to find out whether Mr.

Raines had fired a gun, Mr. Raines said, ―Well, you know I have.‖ (Tpp. 917-18)

Detective Harper overheard another prisoner ask Mr. Raines why he had been

arrested. Mr. Raines answered, ―Hell, man, I just killed two people.‖ (Tp. 918)


      Officer Steven Justus, a jailer with the Henderson County Sheriff‘s

Department, testified about an incident that occurred in the jail on March 19, 2003.

After supper, Mr. Raines and an inmate named Sullivan confronted each other,

yelling at each other and throwing their trays onto the floor. It appeared to Officer

Justus that Mr. Raines thought that Sullivan was threatening him. (Tp. 974)

Officer Justus and another officer separated them. (Tpp. 966-68) When Officer

Justus told Mr. Raines to return to his cell, Mr. Raines yelled, ―Keep him away

from me. I won‘t take any of his shit.‖ (Tpp. 968-69) He also said, ―Keep him

away from me or I‘ll kill him.‖ (Tp. 969) Officer Justus ordered all of the inmates

to go to their bunks. Mr. Raines did not obey; he kept yelling, ―Keep him away

from me. I‘m not going to take any of his shit.‖ (Tp. 969) Officer Justus entered

Mr. Raines‘ cell and told him to sit on his bunk. Mr. Raines was very agitated. He

said, ―You don‘t scare me. I‘m not scared of anybody. I‘ll kill him. I‘ve already

killed two people and it won‘t bother me a bit. I‘m already in here for murder. . . .
                                          25

If you hit me, I‘ll sue this place.‖ (Tp. 969-70) Officer Justus did not know

whether Mr. Raines had meant what he said, or whether he yelled for effect, to

keep people away from him. (Tp. 976) Officer Justus testified that Mr. Raines had

adjusted better to incarceration in the jail by the time of the trial, in August 2005.

(Tp. 972)


      Over defense objection, Captain Charles McDonald, head of the Henderson

County Detention Center read from incident reports in the jail records about

disciplinary incidents involving Mr. Raines – incidents about which Captain

McDonald had no personal knowledge, and the last of which occurred almost a

year before the trial. According to an incident report, on May 27, 2003, Mr.

Raines and another inmate named Goodman yelled, threw items in their cells, and

hit their cell doors. Mr. Raines told an officer that his cell was filling up with

water. The officer saw that other cells were also filling up with water. The officer

asked what had happened. Mr. Raines said he would show the officer, and he

dipped water out of the toilet with a box. Mr. Raines then tried to get the other

inmates to dip water on the floor. When the officer put Mr. Raines in another cell,

Mr. Raines said, ―I will kill you just like I put a bullet in their heads,‖ pointing to

his forehead. Mr. Raines also said, ―the State is trying to kill me, but I‘m not going

to let them,‖ and ―I fucked up and I deserve to die.‖ (Tpp. 1321-23)


      Captain McDonald read about incidents on June 17 and 18, 2003. On June

17, officers saw Mr. Raines with a mop handle raised in the air, cursing at an
                                        26

inmate named Hamricks. According to the report, Mr. Raines said ―that he was

going to kick his ass,‖ and called Hamricks a ―nigger.‖ (Tp. 1329) On June 18,

Mr. Raines was written up for the June 17 incident. Mr. Raines became upset

because of his disciplinary punishment, and he threw a meal plate into a wall,

threw a Styrofoam plate out of the cell onto the floor, slid feces on a paper under

the cell door, and refused to wear his identification wristband. He said, ―As long

as I‘m not allowed to leave my cell, it‘s not going to be the last time it happens

today.‖ (Tpp. 1331-33)


      Captain McDonald read about an incident on July 9, 2003. Mr. Raines

asked an officer to help fix his toilet. When the cell door opened, Mr. Raines ran

to another inmate and began to strike him with his fist. On July 14, 2003, Mr.

Raines was upset because officers had cancelled his free time. He pulled trash out

of a trash bag and threw it and kicked it around the cell pod, and he turned over a

cart with empty food trays and cups. On September 8, 2004, Mr. Raines was upset

that officers had cancelled free time for all of the inmates for the day. He yelled

and kicked his cell door; when officers entered his cell, he said he would throw

feces, urine, and spit on them (Tpp. 1332-35).


      Captain McDonald acknowledged that except for the September 2004

incident, all of the incidents had occurred in 2003, within seven months of Mr.

Raines‘ arrest on December 13, 2002. Mr. Raines then went for over a year

without any infractions, and he did not have any infractions between September
                                          27

2004 and his trial in August 2005. Captain McDonald stated that Mr. Raines had

been given medication to modify his behavior. Captain McDonald concluded that

for over two years, since July 2003, Mr. Raines had modified his behavior and had

adjusted to life in the jail. (Tpp. 1336-39)


      Although the prosecution hired Dr. Heidi Katrina Coppotelli, a psychologist,

to evaluate Mr. Raines, it was the defense that called Dr. Coppotelli as a witness to

help the jury understand why Mr. Raines exploded in violent anger against Philip

and Pam. With defense counsel‘s consent, Dr. Coppotelli interviewed Mr. Raines.

She also reviewed many documents, including a detailed social history of Mr.

Raines compiled by social worker Deborah Grey. Dr. Coppotelli observed that Mr.

Raines‘ childhood was chaotic and abusive from the time he was born until the

time he moved in with the Holders. (Tp. 1042) Dr. Coppotelli concluded that Mr.

Raines has suffered from mild to moderate depression for his entire life. Mr.

Raines has a history of attachment disorder, dependency, and antisocial personality

disorder that is rooted in the abuse and neglect he suffered at the hands of his

parents and grandmother as a child. (Tpp. 1019-32, 1043, 1102) Dr. Coppotelli

explained, ―Instability, neglect, abuse, extremely poor living conditions, and verbal

denigration were his lot.     A child under these conditions can be expected to

experience serious disturbance in the development of attachment and will be prone

to exhibit emotional and behavioral problems.‖ (Tp. 1054) Mr. Raines also has a

longstanding substance abuse problem, especially with crack and ephedrine. In
                                         28

addition to smoking crack on December 10, he might also have consumed as many

as 40 to 60 tablets of ephedrine that day. (Tpp. 1025-27)


      Although Dr. Coppotelli acknowledged that Mr. Raines robbed the Holders

to get money to buy crack, she concluded that it was Mr. Raines‘ attachment

disorder and his deep-seated fear of abandonment that triggered his explosive

anger that night and led him to kill Philip and Pam. (Tpp. 1113-19) By the time

Mr. Raines was released from prison in 2002, he had deteriorated emotionally, and

he recognized and feared his own anger toward others. (Tpp. 1103-05) Dr.

Coppotelli explained that Mr. Raines ―had significant attachment disturbance and

abandonment issues from his abusive childhood, which when significantly

triggered would potentially provide the impetus to acting his fears and

frustrations.‖ (Tp. 1114) As a result, Dr. Coppotelli stated, in the early morning of

December 11, when Mr. Raines was


             facing the angry and upset reactions of his friend, his
             protector, his attachment figure, Philip Holder, his
             attachment and abandonment issues were activated like
             never before. To his immense distress he was being
             severely reprimanded, having to give back his keys,
             being given a sleeping bag and asked to leave. All of
             which are appropriate ways to responding to an addictive
             person acting out behavior. But they had the impact on
             Mr. Raines of – of touching on sensitized areas of his
             background and personality.
(Tpp. 1114-15)
                                        29

      As Mr. Raines sat in the cold shed that night, his anger about being kicked

out, about being banished and abandoned by Philip, erupted into a determination to

kill Philip and Pam. (Tpp. 1114-22)


      Mr. Raines has told people about his guilt and remorse for killing Philip and

Pam. (Tpp. 1427, 1529-31, 1542)


                                  ARGUMENT

Introduction


      The United States Supreme Court, this Court and our state legislature have

long recognized the importance of a jury being able to fully and fairly consider a

defendant‘s life history when deciding whether to sentence a defendant to death.

In many capital cases, jurors have sentenced defendants to life imprisonment

without parole rather than death after hearing defendants‘ life histories. Billy

Raines‘ life was especially tragic, but the jury sentenced him to death anyway. Mr.

Raines received the death penalty despite his abusive and chaotic upbringing

because the jury was improperly prevented from fully and fairly considering his

life history. The jurors were never able to fully consider Mr. Raines‘ life history

because the trial court improperly restricted what they could hear. While the jury

heard that as a child Billy was subjected to physical and emotional abuse, the jury

was denied the right to hear perhaps the most compelling mitigation of all: as a

child Billy was sexually abused by his father and other relatives. The jury was also
                                         30

prohibited from hearing about how pervasive abuse was in Billy‘s home, as the

court improperly restricted the defense case to presenting evidence about abuse

directly inflicted upon Billy. As a result, the jury was denied a true appreciation of

the injurious environment in which Billy grew up.


      The State was able to establish barriers that prevented the jury from fairly

considering Mr. Raines‘ life history. The State never had any witness rebut the

testimony that Mr. Raines‘s early childhood was abusive and chaotic. Instead a

member of the victims‘ family, over objection, asked the jury in effect to disregard

Mr. Raines‘ life history. The prosecution was allowed to combat the evidence of

Mr. Raines‘ horrendous childhood with evidence about Mr. Raines‘ behavior in

pretrial confinement. They presented this evidence without calling the guards who

allegedly witnessed misconduct, but instead introduced evidence of the misconduct

by having a jail employee read reports made by guards who never testified and

thus never cross-examined. The prosecutors were allowed to offer their own

―testimony‖ because they were allowed to tell the jury in closing arguments about

how the victims died even though there was no evidence to support their

speculation.


      Although Billy Raines accepted responsibility for killing Philip and Pamela

Holder, at the guilt-innocence phase the jury had to decide whether he was guilty

of first-degree murder based on premeditation and deliberation. A psychologist,
                                         31

who originally was hired to examine Mr. Raines by the State, testified for the

defense. Her testimony demonstrated that Mr. Raines did not act with deliberation

when he killed the Holders, and, therefore, these killings were not first-degree

murder based on premeditation and deliberation. The State offered no mental

health expert to rebut her. Instead, the State used improper barriers to distract the

jury from the real issues during the guilt-innocence phase of the trial. In closing

argument they attacked the integrity of the defense counsel. They told the jury that

it should consider how other people would react if they did not find Mr. Raines

guilty of first-degree murder. They presented victim impact evidence during the

guilt-innocence phase that was not relevant to any of the issues that were before

the jury.


      I.     THE TRIAL COURT ERRED IN NOT PERMITTING
             MR. RAINES TO INTRODUCE EVIDENCE AT THE
             SENTENCING HEARING THAT HE WAS SEXUALLY
             ABUSED.
             Assignment of Error No. 76 (Rp. 186)

Standard of Review
      The decision of a trial court to sustain the State‘s objection to evidence

proffered by a defendant creates a question of law that is reviewable de novo on

appeal. State v. Bell, 164 N.C. App. 83, 87-88, 594 S.E.2d 824, 827 (2004). A

claim of constitutional error is a question of law that is reviewable de novo. State

v. Thorne, ___ N.C. App. ___, 618 S.E.2d 790, 793 (2005).
                                         32

Discussion
      The trial court committed reversible error at sentencing by prohibiting the

defense from introducing evidence that Mr. Raines was sexually abused. The

Court‘s failure to allow the admission of this evidence violated Mr. Raines‘ right to

due process and to be free from cruel and unusual punishment. Mr. Raines‘ death

sentence should be vacated pursuant to the Eighth and Fourteenth Amendments to

the United States Constitution, Article I, §§ 19 and 27 of the North Carolina

Constitution, N.C. Gen. Stat. § 15A-2000, and Lockett v. Ohio, 438 U.S. 586, 57 L.

Ed. 2d 973 (1978), and its progeny.


              A.    Factual Background.
      Throughout the trial, the defense offered evidence that Mr. Raines was

raised in a chaotic and abusive environment. As part of this effort, the defense

attempted to introduce evidence that Mr. Raines was sexually abused as a child

through Deborah Gray, a social worker hired by the defense to prepare Mr. Raines‘

psychosocial history.


              Q:    [I]n the course of your work did you come to
              discover or hear information regarding sexual abuse that
              went on in the Raines‘ home?

                    MR. WALKER: Objection. I would like to be
              heard out of the presence of the jury.
                    THE COURT: Sustained. Step out.
(Tp. 1467).
                                         33

        Outside the presence of the jury, the parties debated about whether Ms. Gray

would be allowed to testify about what family members told her about sexual

abuse. Assistant District Attorney Walker objected to Ms. Gray testifying that Mr.

Raines‘ mother said someone else told her that Mr. Raines had been sexually

molested by his father. (Tp. 1467). The defense informed the court that it had

more direct information that Mr. Raines was sexually abused by his father.


                    MR. KLINKOSUM: I have something else that he
              has seen.
                    THE COURT: What?

                    MR. KLINKOSUM: It is the interview that Ms.
              Gray did with Angel who related to her that she knows it
              happened to Billy, that she saw it.
(Tp. 1468).

        The defense also informed the Court that Ms. Gray was prepared to testify

that she talked with Mr. Raines‘ brother, Jamie, who discussed sexual abuse as

well.

                   MR. KLINKOSUM:              There was a record
              uncovered by Ms. Gray—

                    THE COURT: A record of what?

                    MR. KLINKOSUM: Jamie Raines being in
              therapy, court ordered therapy, I would add, where he
              disclosed, and has disclosed this to her before, the fact
              that Mr. Raines and the other two children, Angel and
              Jamie, were molested by three cousins one evening. We
              have that related in his records and I believe he related
                                                         34

                  that to Ms. Gray as well. And we would be seeking to
                  get into that also.
(Tp. 1469).

         Mr. Klinkosum said he wanted to introduce what Angel and Jamie said

about their brother being sexually abused through Ms. Gray. (Tp. 1470). When

asked by the court about their availability, he informed the court that both Jamie

and Angel were available. (Tpp. 1468, 1469, 1470).

         The trial court ruled that it would allow the defense to introduce medical

records where Jamie talked about sexual abuse in the home. (Tp. 1473)1.

                         THE COURT: But these statements by other folks
                  that are available, I‘m not letting that in unless you bring
                  them over here.
(Tp. 1473).

         At the sentencing hearing, two of Mr. Raines‘ half-sisters testified that they

believed he had been sexually abused.                         (Tpp. 1366, 1382).             But both sisters

admitted that they had not seen any abuse and did not offer any reasons for their

beliefs. (Tpp. 1372, 1384). While there was evidence of other types of abuse

inflicted upon Mr. Raines, there was no evidence offered that anybody had seen




         1
          Jamie‘s medical records were never introduced by either side after the trial court ruled that that Ms. Gray
would not be able to talk about the sexual abuse that Jamie and Angel had told her about. These records, in which
Jamie purportedly discussed Mr. Raines being sexually abused by his cousins, were never made part of the official
court record and are therefore not part of the Record on Appeal. There was no discussion of any records that
detailed Mr. Raines being sexually abused by his father.
                                         35

him being sexually abused or that evidence of sexual abuse was anything other

than speculation.

            B.        Legal Analysis
      Evidence that Mr. Raines was sexually abused by his father and by his

cousins is relevant mitigating evidence that is admissible at a capital sentencing

hearing. Lockett v. Ohio, 438 U.S. 586, 604, 57 L. Ed. 2d 973, 990 (1978)

(holding capital sentencer must be able to hear all relevant information about a

defendant‘s record and character).      The United States Supreme Court has

specifically said evidence of a defendant‘s abusive background is admissible at a

capital sentencing hearing. Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1

(1982).


      The Supreme Court has recognized the power and highly mitigating nature

of childhood sexual abuse. In Wiggins v. Smith, 539 U.S. 510, 156 L. Ed. 2d 471

(2003), the Court vacated the defendant‘s death sentence because defense counsel

had failed to discover and present highly mitigating evidence about the defendant‘s

sexual abuse.       ―Evidence about the defendant's background and character is

relevant because of the belief, long held by this society, that defendants who

commit criminal acts that are attributable to a disadvantaged background may be

less culpable than defendants who have no such excuse,‖ Id. at 535, 156 L.Ed.2d.

at 493. See also State v. Handy, 331 N.C. 515, 419 S.E.2d 545 (1992) (North
                                          36

Carolina jury sentenced defendant to life in prison rather than death, after his death

sentence was reversed on appeal, despite fact that defendant stabbed physically

infirm victim sixteen times, where defendant presented evidence at the second trial

that he had been the victim of a single act of childhood sexual abuse); State v.

Kemmerlin, 356 N.C. 446, 573 S.E.2d 870 (2002) (vacating death sentence as

disproportionate in part based on finding that jury found non-statutory mitigating

circumstance that defendant was a victim of sexual abuse as a minor). Doe v.

Pataki, 120 F.3d 1263, 1266 (2d Cir. 1997) (discussing continuing impact of

childhood sexual abuse on adult survivors and concluding that the impact on

victims is ―devastating‖); Doe v. United States, 976 F.2d 1071, 1087 (7th Cir. 1992)

(noting ―clinical studies suggest that sexually victimized children share recurrent

emotional and psychological characteristics that manifest later in adult life‖).


      It appears the trial court prohibited Deborah Gray from testifying about Mr.

Raines‘ sexual abuse because of the rule against hearsay. The rules of evidence,

however, do not apply to a capital sentencing hearing. State v. Daughtry, 340 N.C.

488, 517, 459 S. E. 2d 747, 762 (1995), cert. denied, 516 U.S. 1079, 133 L.E.2d.

739 (1996).     Instead, the admissibility of evidence in a capital sentencing

proceeding is guided by N.C. Gen. Stat. § 15A-2000(a)(3), which states the trial

court may admit any evidence relative to sentencing, including matters related to

aggravating and mitigating circumstances. State v. Gray, 347 N.C. 143, 172, 491
                                          37

S.E.2d 538, 550 (1997). ―If evidence is pertinent and dependable, it should not

ordinarily be excluded.‖ Id.


         This Court has said that if hearsay evidence is relevant to a defendant‘s

mitigation case, that evidence should be admitted. In State v. Jones, 339 N.C. 114,

153-54, 451 S.E. 2d 826, 847 (1994), cert. denied, 515 U.S. 1169, 132 L.E.2d. 873

(1995), the defendant had been prohibited from introducing hearsay evidence that

he told a witness he was sorry for what he had done. This Court said that was

error.


                     When evidence is relevant to a critical issue in the
               penalty phase of a capital trial, it must be admitted,
               evidentiary rules to the contrary under state law
               notwithstanding. The jury cannot be precluded from
               considering mitigating evidence relating to the
               defendant's character or record and the circumstances of
               the offense that the defendant offers as the basis for a
               sentence less than death.
Jones, 339 N.C. at 154, 451 S.E.2d. at 847 (citations omitted). Additionally, the

trial court violated the Due Process Clause of the Fourteenth Amendment by

denying Mr. Raines the right to present highly relevant mitigating evidence. See

Green v. Georgia, 442 U.S. 95, 97, 60 L. Ed. 2d 738, 741 (1979).

         In ruling that Ms. Gray could not testify about Jamie and Angel‘s

statements, the trial court noted that these witnesses were available. (Tp. 1470,

1473).      The availability of the declarants should have no bearing on the
                                        38

admissibility of their statements in this case. A proponent of hearsay evidence

must show that the declarant is unavailable if he wants to introduce a hearsay

statement under one of the exceptions to the hearsay rule enumerated in N.C. Gen.

Stat. § 8C-1, Rule 804(b).     The admissibility of those statements in capital

proceedings, however, is not controlled by the rules of evidence. There is nothing

in N.C. Gen. Stat. § 15A-2000(a)(3) that suggests that unavailability is a

prerequisite for admission of hearsay statements.

      The only other time a proponent of hearsay evidence must establish a

witness is unavailable is if admission of the statement would otherwise violate the

confrontation clause of the Sixth Amendment to the United States Constitution.

Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004).                    The

Confrontation Clause does not apply here because it can only be invoked by the

accused. Kenneth S. Broun et al, MCKORMICK          ON   EVIDENCE, 6th Edition, § 252,

Vol. II, page 157. The trial court, however, appeared to analyze the admissibility

of Jamie and Angel‘s statements based on a Crawford analysis. First, it based its

ruling on the availability of the declarants, which is required under Crawford, but

not under § 15A-2000. Second, the Court‘s statement about why it would allow

the admission of Jamie‘s medical records indicates that it believed Crawford

controlled whether the defense could admit hearsay statements.
                                         39

                   THE COURT: I mean, if it‘s [statement from
             declarant] is given to somebody in treatment, even
             Crawford, that comes in, if I understand Crawford.
(Tp. 1471). Crawford and the Confrontation Clause should not have prevented the

admission of evidence of Mr. Raines‘ history of sexual abuse.

      The defense acknowledged that both siblings were available to testify, but

explained to the court why they were unwilling to do so.

                   MR. KLINKSOSUM: [I]t‘s apparently a highly
             emotionally charged issue with these two individuals.
                   THE COURT: I‘m sure it is.
(Tp. 1470). It is not surprising that relatives of a defendant might be highly

resistant to testifying about sexual abuse and other dysfunction in their family in a

public courtroom. The information about the dysfunction in the family, however,

is a critical part of a capital sentencing phase. That is why this Court‘s decision in

Daughtry and other cases that the rules of evidence do not apply to a capital

sentencing case is so important. It ensures that the jury can hear critical evidence

relevant to sentencing even if a defendant‘s relatives do not want to reveal their

deep-seated family problems in a public forum.

      The court‘s refusal to allow evidence of sexual abuse was in stark contrast to

the court‘s handling of the state‘s evidence at the penalty phase. During the state‘s

case-in-chief, Captain Charles McDonald was permitted to read numerous

statements prepared by other officers concerning Mr. Raines‘ misconduct in jail
                                        40

while awaiting trial. (Tpp. 1321-34). See Issue VIII, below. Mr. McDonald was

permitted to read this information even though he never witnessed any of the

incidents (Tp. 1321). No one suggested that any of the guards who wrote the

reports were unavailable.

       In sum, there was no reason for the court to admit the hearsay statements of

jail guards, but prohibit the defense from introducing the evidence of sexual abuse

through Ms. Gray. Evidence of sexual abuse was clearly relevant under both

§15A-2000(f) and under the Eighth and Fourteenth Amendments to the United

States Constitution. While the restrictions of Crawford and the Confrontation

Clause apply to the evidence presented by the State, no such limitations apply to

Ms. Gray‘s testimony. While there were understandable reasons why Mr. Raines‘

siblings may not want to testify publicly about sexual abuse in their family, there

are no such compelling reasons why jail guards could not testify about what they

saw.

       At sentencing, the defense attempted to present evidence that Mr. Raines

came from an abusive and chaotic home. While the defense was able to introduce

evidence of physical and mental abuse, extreme neglect, deprivation, and his half-

sisters‘ speculation that he had been sexually abused, the jury that sentenced Mr.

Raines never heard any evidence that people had seen Mr. Raines being sexually

abused. If the jury had heard substantiated evidence about the defendant being
                                        41

sexually abused by his father and his cousins, he might have received a life

sentence. The State cannot show that this error was harmless beyond a reasonable

doubt. Mr. Raines‘ death sentences must be vacated.


      II.    THE TRIAL COURT VIOLATED MR. RAINES’ RIGHTS
             UNDER THE STATE AND FEDERAL CONSTITUTIONS
             AT SENTENCING BY PROHIBITING THE DEFENSE
             FROM PRESENTING EVIDENCE ABOUT THE
             CHAOTIC AND ABUSIVE NATURE OF MR. RAINES’
             FAMILY AND THE INJURIOUS ENVIRONMENT IN
             WHICH HE GREW UP.
             Assignment of Error Nos. 74, 75 (Rp. 184)
Standard of Review

             The decision of a trial court to sustain the State‘s objection to

evidence proffered by a defendant creates a question of law that is reviewable de

novo on appeal. State v. Bell, 164 N.C. App. 83, 87-88, 594 S.E.2d 824, 827

(2004). A claim of constitutional error is a question of law that is reviewable de

novo. State v. Thorne, ___ N.C. App. ___, 618 S.E.2d 790, 793 (2005).

Discussion

      At sentencing, the defense attempted to introduce evidence about the chaotic

and abusive nature of Mr. Raines‘ family and the abusive environment where Mr.

Raines grew up. The trial court improperly limited the defense to evidence that the

defendant himself was abused or to evidence that the defendant was directly

affected by abuse. This improper limitation on Mr. Raines‘ ability to introduce
                                         42

mitigation denied Mr. Raines his rights under the Eighth and Fourteenth

Amendments to the United States Constitution, Article I, §§ 19 and 27 of the North

Carolina Constitution, N.C. Gen. Stat. § 15A-2000 and Lockett v. Ohio, 438 U.S.

586, 57 L. Ed. 2d 973 (1978) and its progeny.


              A.       Factual Background
      The defense‘s first witness at sentencing was Deborah Gray, a licensed

social worker, who had spent between 150 and 200 hours preparing a psychosocial

history of Mr. Raines. (Tpp. 1343-44). In preparing her social history, Ms. Gray

reviewed numerous records and interviewed Mr. Raines‘ relatives, former teachers,

and employers.         (Tpp. 1344-48).   After discussing how she prepared her

psychosocial history, the defense asked her about her findings.


              Q:     Ms. Gray, in doing a psychosocial history and
              writing that up and understanding Billy‘s life, is there a
              starting point for understanding his life?

              A.     There is. Part of what I found in doing the
              investigation on Billy‘s life was that there‘s an
              intergenerational pattern of abuse, neglect and sexual
              abuse.

                       MS. DIERAUF: Objection.

                       THE COURT: Sustained. Disregard that answer,
              folks.
(Tp. 1348).
                                          43

      Outside the presence of the jury, the defense argued that this information

supported its mitigation case.


                    MR. KLINKOSUM: Your Honor, what I‘m
             seeking to show is obviously what she testified to that
             there is intergenerational patterns of abuse and neglect in
             Mr. Raines‘ family that go all the way down to him. One
             of the nonstatutory mitigating factors we will be asking
             for, Your Honor, is that Mr. Raines was raised in what is
             called an injurious environment.

                    THE COURT: Well, she is going to have to do
             more than state a conclusion. I mean, the problem I‘m
             having with what she said was – I don‘t know, if he was
             abused, she needs to say that. If it is someone else, then
             she is going to have to have something to link it up,
             because – or if you‘re going to have something just – the
             conclusory statement out. If he is abused, sure, I think
             that is very relevant. No question about it. But if there
             was abuse of a sibling that he didn‘t know about, I fail to
             see how that could affect him. And you‘re going to have
             to show me how it would with her testimony, not just a
             conclusion.

                   MR. KLINKOSUM: I understand that, Your
             Honor. What, I‘m – what I‘m getting at is the fact that
             one of the mitigators that we will be asking for is that he
             grew up in an injurious environment.
(Tpp. 1349-50).


      The court continued to insist evidence of abuse would only be admissible if

the defense could directly tie it to Mr. Raines.


                   THE COURT: I guess what I‘m saying, you are
             going to have to have a little better foundation before she
             can just throw that out, because if you start talking about
                                         44

              sisters and everything—and if it‘s—if it‘s abuse of a
              sibling, I hope she has got something more than just
              saying I found a record of abuse of a sibling. Somehow
              it‘s going to have to be tied to him, isn‘t it?

(Tp. 1350).


      Throughout the rest of the sentencing phase, the trial court prohibited the

defense from presenting evidence which demonstrated that Mr. Raines grew up in

an injurious environment if the defense could not directly establish that Mr. Raines

was affected by it. When the defense tried to elicit such evidence, the trial court

would sustain the State‘s objection if the defense could not directly establish that

Mr. Raines‘ was affected by it. For example, the court prevented the defense from

eliciting evidence that Mr. Raines‘ father was arrested for sexually molesting Mr.

Raines‘ sister while Mr. Raines was in the home. Rosemary Raines, Billy Raines‘

paternal aunt, testified that while Mr. Raines and his father were staying with her,

Mr. Raines‘ father was arrested.


              Q. Can you describe if you recall what Billy‘s father was
              arrested for while he was staying at your house?

              MR. WALKER: Objection.

              THE COURT: Sustained.
(Tp. 1411).


      Later the trial court was specifically told that Mr. Raines‘ father was arrested

on charges of sexually assaulting the other two children in the family, but not Mr.
                                         45

Raines. (Tp. 1467). Despite being aware that defendant‘s father was arrested for

sexually abusing his other children, the trial court prohibited the defense from

eliciting that information through Ms. Gray.


             Q.    In the course of your investigation did you
             determine that while he was a child his father was
             charged with a crime?

             A.    Yes, I did.

             Q.    Okay. And what crime was his father charged
             with?

                   MR. WALKER: Objection.
                   MS. DIERAUF: Objection.
                   THE COURT: Sustained.
Tpp. 1505-06.


             B.    Legal Analysis
      ―[T]he Eighth and Fourteenth Amendments require that the sentencer . . . not

be precluded from considering, as a mitigating factor, any aspect of a defendant's

character or record and any of the circumstances of the offense that the defendant

proffers as a basis for a sentence less than death.‖ Lockett v. Ohio, 438 U.S. 586,

604, 57 L. Ed. 2d 973, 990 (1978). The fact that Mr. Raines grew up in a home

with an intergenerational pattern of abuse, neglect, and sexual abuse, and that his

father was arrested on charges of molesting his sister while he lived in the home, is

an aspect of Mr. Raines‘ record that the sentencing jury should have heard. As the
                                          46

defense pointed out at trial, this information is relevant to the non-statutory

mitigating circumstance that the defendant lived in an injurious environment. The

United States Supreme Court has said that evidence of a defendant‘s turbulent

family life and childhood is mitigating evidence that the sentencer in a capital case

cannot be precluded from hearing. Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed.

2d 1 (1982).


      The trial court said that it would only admit evidence of the abuse in the

Raines home if the defense could establish that Mr. Raines was himself the victim

of abuse or if the defense could directly show how this abuse affected Mr. Raines.

This was a far too restrictive view on when evidence of a defendant‘s background

is relevant for mitigation.


               It is universally recognized that evidence, to be relevant
               to an inquiry, need not conclusively prove the ultimate
               fact in issue, but only have ‗any tendency to make the
               existence of any fact that is of consequence to the
               determination of the action more probable or less
               probable than it would be without the evidence.‘ The
               meaning of relevance is no different in the context of
               mitigating evidence introduced in a capital sentencing
               proceeding. …Relevant mitigating evidence is evidence
               which tends logically to prove or disprove some fact or
               circumstance which a fact-finder could reasonably deem
               to have mitigating value.
McKoy v. North Carolina, 494 U.S. 433, 440, 108 L. Ed. 2d 369, 379 (1990)

(citations omitted).
                                        47

      The trial court‘s restriction on mitigating evidence is also inconsistent with

the United States Supreme Court‘s decision in Tennard v. Dretke, 542 U.S. 274,

159 L. Ed. 2d 384 (2004). In Tennard, the Court rejected the argument that in

order for evidence to be relevant to mitigation, the defense must show that the

evidence has a nexus to the crime. Id. at 284, 159 L.E.2d. at 395. It noted that

there was a ―low threshold‖ for establishing the relevance of mitigating evidence.

Id. at 285, 159 L.E.2d. at 395. ―Virtually no limits are placed on the relevant

mitigating evidence a capital defendant may introduce concerning his own

circumstances.‖ Id., quoting Payne v. Tennessee, 501 U.S. 808, 822, 115 L. Ed. 2d

720, 733 (1991).


      The Court said that a trial court may limit trivial aspects of the defendant‘s

character from being introduced, such as evidence about how often the defendant

will take a shower. Id. at 286, 159 L.E.2d. at 397. However, there is nothing

trivial about the fact that Mr. Raines was raised in an injurious environment

characterized by intergenerational abuse, including sexual abuse of his siblings.

Such an environment clearly could affect a person even if he himself was not

directly abused.


      Other jurisdictions have recognized that evidence of abuse in the family is

admissible under Lockett and its progeny. See Ex parte Smith, 2003 Ala. LEXIS

79, 3-13 (Ala. 2003) (Alabama Supreme Court reverses death sentence because
                                        48

during sentencing defendant only allowed to present evidence of abuse he

personally suffered and could not present evidence of abuse inflicted on his

siblings). Other courts have simply assumed that such evidence is admissible, and

have discussed its importance in determining the validity of a defendant‘s death

sentence. See Boyde v. Brown, 404 F.3d. 1159 (9th Cir. 2005) (vacating death

sentence because of ineffective assistance of counsel for failure to develop and

present evidence of petitioner‘s abuse as a child and evidence that petitioner‘s

sister was sexually molested and petitioner knew about the molestation); Cargle v.

Mullin, 317 F.3d. 1196, 1221 (10th Cir. 2003) (ineffective assistance of counsel

occurred due to failure of counsel to present evidence that petitioner‘s father

abused drugs and abused his mother, even though no evidence is mentioned in the

opinion that petitioner was personally abused); State v. Tennace, 109 Ohio St. 255,

847 N.E.2d. 386 (2006) (Ohio State Supreme Court vacates death sentence because

aggravating factor does not outweigh mitigating factors, and mitigating factors

include evidence that defendant had to watch the sexual abuse of his sister). As the

court observed in Boyde v. Brown, supra, ―[Petitioner‘s] history of suffering

violent physical abuse, as well as the family history of sexual abuse he had known

about growing up, is the sort of evidence that could persuade a jury to be lenient.‖

404 F.3d at 1176.
                                        49

      One of the mitigating circumstances found by at least one juror was that

―The defendant was exposed to an injurious environment of abuse and neglect

prior to coming to live with the Holders.‖ (Rpp. 139, 150). If the jury had heard

the excluded evidence, the jurors who found the mitigating circumstance would

have given it more weight.      Additionally, more jurors might have found the

existence of that circumstance. In this case, if the jury heard about the injurious

environment in which defendant was raised, as well as the abuse he personally

suffered, he might have been sentenced to life imprisonment without parole. His

death sentences must be vacated.


      III.    THE TRIAL COURT ERRED IN OVERRULING MR.
              RAINES’  OBJECTION   AT   SENTENCING   TO
              TESTIMONY FROM A MEMBER OF THE VICTIM’S
              FAMILY ABOUT HOW THE JURY SHOULD CONSIDER
              EVIDENCE ABOUT MR.        RAINES’ ABUSIVE
              BACKGROUND.
              Assignment of Error No. 72 (Rp. 183)
Standard of Review

      When a trial court admits evidence over objection, it creates a question of

law that is reviewable de novo on appeal. State v. Bell, 164 N.C. App. 83, 87-88,

594 S.E.2d 824, 827 (2004). A claim of constitutional error is a question of law

that is reviewable de novo. State v. Thorne, ___ N.C. App. ___, 618 S.E.2d 790,

793 (2005).
                                         50


Discussion


      The trial court committed reversible error when it permitted a victim impact

witness to give her opinion that Mr. Raines‘ abusive background was not

mitigating. This testimony went beyond the scope of permissible victim-impact

testimony and violated Mr. Raines‘ rights under the Eighth and Fourteenth

Amendments to the United States Constitution, Article I, §§ 19 and 27 of the North

Carolina Constitution, N.C. Gen. Stat. § 15A-2000, and Payne v. Tennessee, 501

U.S. 808, 115 L. Ed. 2d 720 (1991).

      A. Factual Background

      Jill Gilbert, the sister of Philip Holder, testified during the State‘s penalty

phase case-in-chief. She read a prepared statement to the jury. (Tp. 1312). In that

statement, she described the pain that the murders of her brother and sister-in-law

had on the family, particularly on her parents. (Tpp. 1312-13). She also described

everything her family had done for Mr. Raines throughout the years, including

letting him live in the Holder home for many years. Id. In the middle of her

statement, however, she directly attacked Mr. Raines‘ mitigation case.


             A.    And I don‘t think anything that relates back to his
             childhood could have made something this – this horrible –

                   MR. KLINKOSUM: Objection.
                   THE COURT: Overruled.
                                          51

(Tp. 1312).


      What happened to Mr. Raines as a child was the heart of the defense‘s

mitigation case. During the guilt-innocence phase, Dr. Heidi Coppotelli testified

that Mr. Raines‘ childhood was ―abusive and chaotic.‖ (Tpp. 1042-43). The

testimony in the sentencing phase more than corroborated that conclusion. While

Mr. Raines had a sister and brother and several half-siblings, he was treated the

worst of all of the children. (Tp. 1374). Before he left his family to live with the

Holders, Mr. Raines was routinely beaten by his mother and his grandmother. His

grandmother would slap him in the face, beat him with hickory and whip him with

a belt. (Tp. 1358). His mother would punch him in the face for no reason. (Tp.

1377). When Mr. Raines was eight or nine years old, his mother beat him with a

plastic baseball bat because he did not move fast enough when she called. (Tp.

1378).


      When Mr. Raines was eight years old, his grandmother ordered his half-

sister, Tammy Pruitt, to whip Mr. Raines. Tammy, who was thirteen, was told that

if she did not beat her brother, she would be the one who was whipped. She did

what she was ordered to do. (Tp. 1380).


      Mr. Raines also spent a lot of time with his father. His father was an

alcoholic. (Tp. 1381). He was abused emotionally and mentally by his father. His

father constantly called his son a ―motherfucker‖ and a ―faggot.‖ (Tpp. 1356-57).
                                       52

Billy was also deprived of many of life essentials growing up. Billy had to wear

torn clothing with no shoes. (Tp. 1376). When he visited other relatives, he

smelled because he neither bathed nor showered. (Tp. 1369). His family had to

constantly move from place to place. At one point, they had to live in a tent on a

relative‘s property because they could not afford to live in an actual home. (Tp.

1399). When they did live in a house, it was infested with rats as a big as cats.

(Tp. 1457).


      Billy was not properly supervised and often went without food. When Billy

was just 18 months old, his aunt came into his home and discovered that the only

adult in the house, Billy‘s father, had passed out. Billy and his siblings were

otherwise alone. The oldest child in the house was three. The kitchen was filled

with cornmeal because the toddlers were starving and they were desperately trying

to make biscuits. (Tp. 1462).


      In making the sentencing recommendations, one or more jurors found six

non-statutory mitigating circumstances in each case that related directly to Mr.

Raines‘ chaotic and abusive upbringing before leaving his family to live with the

Holders. Those circumstances were:


              5.       The defendant‘s parents provided an early
              environment of chaos, homelessness, poverty, and
              alcoholism.
                                       53

            6.         The defendant‘s early life was characterized by
            instability, neglect, abuse and extremely poor living
            conditions, and verbal denigration.

            7.        The defendant experienced physical abuse as a
            child from his mother and grandmother.
            8.       The physical and emotional abuse the defendant
            experienced from his parents was worse than that
            experienced by his brother and sister.

            10.      The defendant experienced a serious
            disturbance in the development of attachment as a young
            child that left him prone to exhibit emotional and
            behavioral problems.

            37.       The defendant was exposed to an injurious
            environment of abuse and neglect prior to coming to live
            with the Holders.
(Rpp. 133-39, 144-51).

      B. Legal Analysis

      Ms. Gilbert‘s opinion about the role Mr. Raines‘ chaotic and abusive

childhood might have had on the murder of her brother and sister-in-law goes far

beyond what is allowed during victim-impact testimony. In Payne v. Tennessee,

501 U.S. 808, 115 L. Ed. 2d 720 (1991), the United States Supreme Court

overruled Booth v. Maryland, 482 U.S. 496, 96 L. Ed. 2d 440 (1987), and ruled

that there was no constitutional prohibition against the introduction of evidence

and argument relating to the victim and the impact of the victim‘s death on the

victim‘s family. The Court, however, specifically declined to overrule Booth‘s

prohibition on the ―victim‘s family members‘ characterizations and opinions about
                                         54

the crime, the defendant, and the appropriate sentence.‖       Payne v. Tennessee,

supra, 501 U.S. at 830, n.2, 115 L.Ed.2d 739, n.2. A victim‘s family member is

not allowed to give an opinion about the appropriate sentence and therefore should

not be able to give an opinion as to the value or weight that should be afforded

mitigating circumstances. See also State v. Bowman, 349 N.C. 459, 479, 509

S.E.2d. 428, 440 (1998), cert. denied, 527 U.S. 1040, 144 L. Ed. 2d 802 (1999)

(defendant may not elicit from victim‘s mother her ambivalence about the death

penalty in the case).


      While a victim‘s character may not actually be relevant to any given issue at

a capital sentencing hearing, ―the State should be given some latitude in fleshing

out the humanity of the victim so long as it does not go too far.‖ State v. Reeves,

337 N.C. 700, 723, 448 S.E. 2d 802, 812 (1994), cert. denied, 514 U.S. 1114, 131

L. Ed. 2d 860 (1995). Ms. Gilbert was given plenty of opportunity to flesh out the

victims‘ humanity in the case, but the trial court went too far when it failed to

strike Ms. Gilbert‘s opinion about the effect of the defendant‘s childhood.


      In addition to rulings from the United States Supreme Court and this Court,

admission of victim impact testimony is governed by N.C. Gen. Stat. § 15A-

833(a). Ms. Gilbert‘s opinion went beyond the type of evidence a victim is

allowed to testify about under § 15A-833(a).        Under that statute, a victim is

allowed to testify before the sentencing authority about:
                                       55

                     (1) A description of the nature and extent of
                  any physical, psychological, or emotional injury
                  suffered by the victim as a result of the offense
                  committed by the defendant.

                    (2) An explanation of any economic or property
                  loss suffered by the victim as a result of the
                  offense committed by the defendant.

                    (3) A request for restitution and an indication of
                  whether the victim has applied for or received
                  compensation under the Crime Victims
                  Compensation Act.


      Ms. Gilbert‘s opinion undermined the very heart of Mr. Raines‘ sentencing

case. The United States Supreme Court has made it clear that evidence of a

defendant‘s chaotic and abusive upbringing is relevant in a capital sentencing

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

contrary to Ms. Gilbert‘s statement, the defense is not required to show a nexus

between evidence about his background and the capital offense.           Tennard v.

Dretke, 542 U.S. 274, 159 L. Ed. 2d 384 (2004). Ms. Gilbert‘s testimony, in the

middle of emotionally charged testimony about the impact of the deaths of her

family members, basically amounted to a plea that the jury disregard Mr. Raines‘

chaotic and abusive upbringing. The trial court‘s overruling of the objection to

such testimony prevented the jury from fully considering and weighing this

evidence in making its sentencing determination.      Barriers that interfere with

consideration of relevant mitigating evidence offend the Eighth and Fourteenth
                                         56

Amendments. McKoy v. North Carolina, 494 U.S. 433, 108 L. Ed. 2d 369 (1990);

Hitchcock v. Dugger, 481 U.S. 393, 95 L. Ed. 2d 347 (1987) (even though

mitigating evidence was allowed to be presented, constitutional error occurred

when jury instructions created barrier against sentencer‘s consideration of

mitigation).


      The effect of Ms. Gilbert‘s opinion cannot be determined by examining the

Issues and Recommendation sheets. Although, the jury answered ―yes‖ to six

mitigating circumstances related to childhood abuse, it is impossible to know

whether some jurors rejected one or more of those mitigating circumstance. It is

also impossible to determine whether this improper evidence led one or more

jurors to give those mitigating circumstances less weight when the jurors

considered issues three and four at the sentencing phase. The State cannot show

beyond a reasonable doubt that absent this improper evidence at least one juror

might have insisted on a life sentence without parole instead of the death penalty

See Wiggins v. Smith, 539 U.S. 510, 537 156 L.E.2d. 471, 495 (2003) (finding that

the prejudice prong is met for capital sentencing errors in jurisdictions where a life

sentence is imposed if the jury does not unanimously vote for death if ―there is a

reasonable probability that at least one juror would have struck a different

balance‖). Mr. Raines‘ death sentence must be vacated.
                                         57

      IV.    THE TRIAL COURT ABUSED ITS DISCRETION BY
             OVERRULING DEFENDANT’S OBJECTION TO
             IMPROPER, SPECULATIVE CLOSING ARGUMENT IN
             WHICH    A   PROSECUTOR      IMPUGNED   THE
             INTEGRITY OF DEFENSE COUNSEL AND MR.
             RAINES BY CONTENDING THAT THEY WOULD HAVE
             DENIED MR. RAINES’ GUILT IF THEY COULD HAVE
             GOTTEN AWAY WITH IT.
             Assignment of Error No.66 (Rp. 182)

Standard of Review

      This Court reviews a trial court‘s decision to overrule a defendant‘s

objection to the State‘s closing argument for abuse of discretion. State v. Jones,

355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002). A trial court‘s decision to overrule

such an objection is an abuse of discretion if the State‘s closing argument was

improper and if there is a reasonable possibility that the jury would have reached a

different result if the trial court had sustained the defendant‘s objection. State v.

Allen, 353 N.C. 504, 509, 546 S.E.2d 372, 375 (2001).


Discussion
      Billy Raines admitted that he killed Philip and Pamela Holder. Throughout

the trial, defense counsel admitted that Mr. Raines killed the Holders. Counsel

emphasized that the Holders were innocent victims and that their murders were

tragic. For example, in their guilt-innocence phase opening statement (see Tpp.

392-93) and closing argument (see Tpp. 1172-77), defense counsel admitted that

Mr. Raines killed the Holders. The goal of defense counsel was not to deny that

Mr. Raines is guilty of murder for killing the Holders. Rather, their goal was to
                                           58

persuade the jury that when Mr. Raines decided to kill the Holders, he was gripped

with anger rooted in the abuse and neglect he had suffered in his childhood, that he

acted without deliberation, and, therefore, that the jury should either convict him of

second-degree murder or sentence him to life imprisonment without parole.


      However, during its guilt-innocence phase closing argument -- and over

defense counsel‘s objection -- one of the prosecutors improperly ridiculed defense

counsel‘s repeated admissions of Mr. Raines‘ guilt by telling the jury,


             MR. WALKER: And I appreciate them coming in here
             and saying, well, okay, we did it. Well, we wouldn‘t
             have if we didn‘t have that evidence. We would be in
             here saying I didn‘t do it.
(Tp. 1240) This allegation by the prosecutor was improper and unprofessional,

violating North Carolina law and Mr. Raines‘ right to counsel and due process

under both the United States and North Carolina Constitutions. The trial court

abused its discretion by overruling defense counsel‘s objection to the prosecutor‘s

claim. (Tp. 1240)


      Mr. Raines understands that North Carolina law gives attorneys wide

latitude in closing arguments. See generally State v. Rogers, 355 N.C. 420, 462,

562 S.E.2d 859, 885 (2002). However, this Court has rightly emphasized that

latitude is not license, and that fairness and professional civility require trial courts

to impose important boundaries of propriety on closing arguments.               State v.

Matthews, 358 N.C. 102, 112, 591 S.E.2d 535, 542 (2004); State v. Rogers, supra,
                                         59

355 N.C. at 462, 562 S.E.2d at 885. See also Berger v. United States, 295 U.S. 78,

88, 79 L.Ed.2d 1314, 1321 (1935). The prosecutor‘s argument in this case went

well beyond the pale of propriety.


      The prosecutor‘s argument was improper for two reasons. First, it wrongly

attacked the truthfulness of defense counsel and Mr. Raines, and the integrity and

professionalism of defense counsel, by claiming that defense counsel and Mr.

Raines regarded this trial about life and death as a mere game in which they would

have lied if they could have gotten away with it. This Court has repeatedly warned

that prosecutors may not make closing arguments that insult defense counsel,

defendants, or witnesses or impugn the integrity of defense counsel. State v.

Matthews, 358 N.C. 102, 112, 591 S.E.2d 535, 542 (2004); State v. Rogers, supra,

355 N.C. at 462, 562 S.E.2d at 885; State v. Rivera, 350 N.C. 285, 514 S.E.2d 720

(1999); State v. Sanderson, 336 N.C. 1, 10, 442 S.E.2d 33, 39 (1994).


      Rivera is particularly instructive in this case. In Rivera, a murder case, the

defendant‘s girlfriend, an alibi witness, testified that the defendant had been in her

apartment with her for the entire day of the murder, March 22, 1996, and that

neither of them left the apartment that day. The State introduced evidence that the

witness did leave the apartment that day for a doctor‘s appointment.              The

prosecutor said during closing argument that defense counsel ―displayed one of the

best poker faces‖ when the State introduced the doctor as a witness to refute the

girlfriend‘s alibi testimony. This Court concluded that the prosecutor‘s argument
                                         60

wrongly disparaged the personality or performance of defense counsel. This Court

stated that


              this comment by the prosecutor improperly implied that
              defense counsel had personal knowledge of both the
              validity and damaging nature of the State‘s evidence
              concerning [the alibi witness‘] whereabouts on 22 March
              1996 and was attempting to conceal this knowledge by
              not reacting to the presentation of [the doctor‘s]
              testimony.
350 N.C. at 291, 514 S.E.2d at 723.           Similarly, in this case, the prosecutor

improperly implied that defense counsel and Mr. Raines wanted to conceal the

truth from the jury.


      Second, the prosecutor traveled outside the record by speculating, with no

basis whatsoever, that defense counsel and Mr. Raines would have denied

defendant‘s guilt if the State‘s evidence had not been so strong. Without any basis

in the trial record, the argument claimed that Mr. Raines and his attorneys admitted

Mr. Raines‘ guilt only as a tactic that the State‘s evidence forced them to adopt and

not because of their integrity and Mr. Raines‘ remorse and acceptance of guilt.

While counsel may make arguments based on reasonable inferences from the

evidence, counsel may not base a closing argument on matters outside the trial

record. State v. Matthews, supra, 358 N.C. at 112, 591 S.E.2d at 542; State v.

Jones, 355 N.C. 117, 135, 558 S.E.2d 97, 108 (2002).
                                        61

      The prosecutor‘s argument was highly prejudicial.             Acceptance of

responsibility for killing the Holders was at the very core of Mr. Raines‘ position

in both phases of the trial.     In the guilt-innocence phase, defense counsel

emphasized that Mr. Raines accepted that responsibility, while counsel also tried to

show that the killings were second-degree murder rather than deliberate first-

degree murder because the killings resulted from an explosion of anger rooted in

the terrible abuse and neglect of his childhood. In the penalty phase, defense

counsel emphasized that Mr. Raines accepted responsibility for the killings but that

life imprisonment without parole, rather than death, was the appropriate

punishment because his explosion of anger was rooted in the emotional wounds of

a child who had suffered profound abuse and neglect. The prosecutor‘s speculative

ridicule of defense counsel and Mr. Raines as mere players in a game of litigation

undermined defense counsel‘s careful effort to balance Mr. Raines‘ acceptance of

moral responsibility with psychological explanation.         As a result of the

prosecutor‘s improper argument, the jury found Mr. Raines guilty of first-degree

murder based on premeditation and deliberation as well as first-degree felony

murder, thereby permitting the State to rely on an additional aggravating

circumstance (N.C. Gen. Stat. §15A-2000(e)(3)) in the penalty phase.


      The State‘s argument was improper, and there is a reasonable possibility that

the jury would have acquitted Mr. Raines of first-degree premeditated and

deliberate murder if the trial court had sustained defense counsel‘s objection. In
                                         62

light of the trial court‘s abuse of discretion in overruling defense counsel‘s

objection to the prosecutor‘s argument, Mr. Raines asks this Court to reverse his

convictions for first-degree murder and the sentences of death.


      V.     THE TRIAL COURT ERRED BY NOT INTERVENING
             EX MERO MOTU TO PREVENT THE PROSECUTORS
             FROM MAKING A GROSSLY IMPROPER CLOSING
             ARGUMENT THAT ENCOURAGED THE JURY TO
             IGNORE   NORTH     CAROLINA   LAW    ABOUT
             DELIBERATION AS AN ELEMENT OF FIRST-DEGREE
             MURDER.
             Assignment of Error No. 68 (Rp. 182)
Standard of Review

      If a defendant did not object at trial to closing argument by the State, this

Court reviews the argument to determine whether the argument was so grossly

improper that the trial court abused its discretion by not intervening ex mero motu.

State v. Jones, 355 N.C. 117, 126, 558 S.E.2d 97, 103 (2002).

Discussion
      In the guilt-innocence phase, a prosecutor made a grossly improper closing

argument by encouraging the jury to ignore North Carolina law regarding the

element of deliberation in first-degree murder. Although defense counsel did not

object to this argument, it was grossly improper and, therefore, the trial court erred

by not intervening ex mero motu to stop the prosecutor from making the argument.
                                         63

      As discussed above, defense counsel admitted that Mr. Raines killed the

Holders. Defense counsel admitted that Mr. Raines was guilty of second-degree

murder, but they sought to show that when Mr. Raines decided to kill the Holders,

he was gripped with emotional pain and anger that was deeply rooted in childhood

abuse and neglect, that Philip‘s decision to kick him out of the house amounted to

provocation that triggered a violent explosion of that anger and, therefore, that he

acted without deliberation when he decided to kill Philip and Pam.


      In guilt-innocence phase closing argument, one of the prosecutors countered

this defense with the following argument:


             MR. WALKER: And then there‘s these things that the
             Judge will tell you that you may consider in deciding
             whether or not he acted in deliberate fashion. Lack of
             provocation by the victim. Now, what is provocation?
             The Defense would have you believe that when Philip
             Raines said, you‘re out of here, you‘re not staying here
             anymore, that that was provocation.
             Well, again, members of the jury, I hope that‘s not the
             case and that we‘re not going to set that sort of precedent
             here. Because the next guy that gets fired out there is
             going to say, oops, provocation, I‘m going to kill the
             boss. You know? Hearing something you don‘t like is
             not provocation and an excuse to kill or a way to avoid a
             first degree murder charge. It just simply isn‘t.
(Tp. 1245)

      This argument was grossly improper because under North Carolina law,

words can indeed be provocation that negates the element of deliberation.
                                        64

Although words cannot constitute adequate provocation that would reduce murder

to voluntary manslaughter by negating malice, words can amount to provocation

that negates deliberation. As this Court explained in State v. Huggins, 338 N.C.

494, 497-498, 450 S.E.2d 479, 481-82 (1994), there are two kinds of provocation

relating to the law of homicide. One is that level of provocation that negates

malice and thereby reduces murder to voluntary manslaughter.          Mere words,

however abusive or insulting, are not sufficient provocation to negate malice and

reduce murder to manslaughter. The other kind of provocation is that which is not

sufficient to reduce murder to manslaughter but is sufficient to incite defendant to

act suddenly and without deliberation. Thus, words may be enough to arouse a

sudden and sufficient passion in the perpetrator to negate deliberation and reduce a

homicide to second-degree murder. State v. Huggins, supra; State v. Corn, 303

N.C. 293, 278 S.E.2d 221 (1981); State v. Misenheimer, 304 N.C. 108, 114, 282

S.E.2d 791, 795-96 (1981); State v. Thomas, 118 N.C. 1113, 24 S.E. 431, 434-35

(1896).

      In an individual case, it is up to the jury to decide, based on the evidence,

whether words – such as an employer firing an employee or a person ordering his

closest friend to leave – amount to such provocation in that case. However,

contrary to the prosecutor‘s argument, the possibility that words may be

provocation that negates deliberation is precisely what North Carolina precedent

provides.
                                        65

      It was grossly improper for the prosecutor to seek jury nullification of North

Carolina law on provocation by encouraging the jurors to reject that law. This

argument also violated Mr. Raines‘ right to due process under the Fourteenth

Amendment to the United States Constitution. This argument was so grossly

improper that the trial court had a duty to intervene ex mero motu. Accordingly,

this Court should reverse Mr. Raines‘ convictions and order a new trial.


      VI.   THE TRIAL COURT ERRED BY NOT INTERVENING
            EX MERO MOTU TO PREVENT THE PROSECUTORS
            FROM MAKING GROSSLY IMPROPER CLOSING
            ARGUMENTS DURING THE PENALTY PHASE ABOUT
            WHAT THE HOLDERS SAID TO MR. RAINES DURING
            THE ATTACKS AND ABOUT WHAT MR. RAINES WAS
            THINKING DURING THE TRIAL, WHERE THESE
            ARGUMENTS WERE MERE SPECULATION WITH NO
            BASIS IN THE EVIDENCE.
            Assignment of Error No. 83 (Rp. 186)
            Assignment of Error No. 85 (Rpp. 186-87)
            Assignment of Error No. 86 (Rp. 187)
Standard of Review


      If a defendant did not object to closing argument by the State, this Court

reviews the argument to determine whether the argument was so grossly improper

that the trial court abused its discretion by not intervening ex mero motu. State v.

Jones, 355 N.C. 117, 126, 558 S.E.2d 97, 103 (2002).
                                       66


Discussion


      In the penalty phase, the prosecutors made arguments based on pure

speculation, with no support in the evidence, about what Philip and Pamela Holder

said to Mr. Raines during the attacks and about what Mr. Raines was saying or

thinking during the trial.    Although defense counsel did not object to these

arguments, the arguments were grossly improper and, therefore, the trial court

erred by not intervening ex mero motu to stop the prosecutors from making the

arguments.


      These three grossly improper closing arguments are as follows:


             MS. DIERAUF: Philip Holder is conscious. He is
             aware. Do you think that Philip Holder begged for his
             life? Sure he did. Do you think that Philip Holder when
             he saw the defendant coming at him with this wrench
             said, wait a minute, wait a minute, Billy, what do you
             think you‘re doing? Come to your senses. I‘m your
             brother. Come on. You wouldn‘t kill your brother,
             would you? Here. You can have my credit card, you can
             have my driver‘s license, wallet, whatever. Just don‘t
             kill us. Don‘t hurt us. Don‘t hurt Pam, don‘t hurt me.

(Tp. 1606) (emphasis added)


             MS. DIERAUF: Think about Pam and the injuries
             inflicted on Pam. Do you think that Philip may have
             been conscious and aware as the defendant moved from
             him with this wrench over to her? Do you think that
             when she saw it coming, she screamed out, don‘t, don‘t?
             Do you think she begged for her life?
(Tp. 1608)
                                         67

             MR. WALKER: Let‘s not forget one thing. We‘ve
             seen this defendant on a number of occasions trying to
             cast blame. We heard about that he likes to blame other
             people for things that he did. He is probably doing that
             right now. He is probably saying, why is this DA trying
             to give me the death penalty? Why this? Why that?
(Tp. 1571)


All three of these arguments were grossly improper because they amount to pure

speculation, with no support in the evidence.


      As discussed above in Section IV, Mr. Raines understands that North

Carolina law gives attorneys wide latitude in closing arguments. See generally

State v. Rogers, 355 N.C. 420, 462, 562 S.E.2d 859, 885 (2002). However, as also

discussed above, latitude is not license. Fairness, professional civility, and the

Fourteenth Amendment requirement of due process require trial courts to impose

important boundaries of propriety on closing arguments. State v. Matthews, 358

N.C. 102, 112, 591 S.E.2d 535, 542 (2004); State v. Rogers, supra, 355 N.C. at

462, 562 S.E.2d at 885. See also Berger v. United States, 295 U.S. 78, 88, 79

L.Ed.2d 1314, 1321 (1935). These three arguments violated the basic principle

that closing argument may not include allegations of fact that are not based on the

evidence.


      While counsel may make arguments based on reasonable inferences from

the evidence, counsel may not base a closing argument on matters outside the trial

record. State v. Matthews, supra, 358 N.C. at 112, 591 S.E.2d at 542; State v.
                                        68

Jones, 355 N.C. 117, 135, 558 S.E.2d 97, 108 (2002).          None of these three

arguments was supported by the evidence or from an inference from the evidence.


      In the first two arguments quoted above, the prosecutor alleged that both

Philip and Pam Holder saw Billy approaching them with the wrench and spoke to

Billy during the attacks, begging for their lives. The evidence certainly shows that

the blows from the wrench caused serious injury and severe pain. However, there

is no evidence that shows or even suggests that either Philip or Pam saw Mr.

Raines approaching them with the wrench. There is no evidence that shows or

even suggests that either Philip or Pam said anything at all during the attacks. The

prosecutor strayed far from the evidence by claiming that Philip and Pam saw Mr.

Raines approach with the wrench and that they begged for their lives. In fact, the

same prosecutor told the jurors, only moments later, that they would not consider

as an aggravating factor whether the killing of Pam was especially heinous

atrocious, or cruel because ―we don‘t know for certain that she was conscious.‖

(Tp. 1609, lines 3-4) The attacks were terrible acts of violence, but the prosecutor

strayed far outside the evidence by speculating about what the Philip and Pam saw

and said during the attacks.


      The third argument also amounted to pure speculation. Mr. Raines did not

testify during the trial. There is no evidence that shows or even suggests that Mr.

Raines wondered why the State was seeking the death penalty. Quite the contrary,
                                             69

the record shows that Mr. Raines accepted responsibility for killing Philip and Pam

and that he felt remorse for killing them.


      These three arguments were highly prejudicial. The evidence showed that

the murders of Philip and Pam Holder were terrible and shocking crimes. But

these arguments by the prosecutors went far beyond the evidence. They were

effective but improper attempts to inflame the jurors‘ emotions. The arguments

were prejudicial because they gave improper strength to the State‘s effort to

persuade the jurors to find one of the most serious aggravating circumstances of

all, namely, that the murders were especially heinous, atrocious, or cruel. The

arguments also were prejudicial because they gave improper weight to that

aggravator in the weighing process required by Issues Three and Four of the capital

sentencing procedure.


      These three penalty phase arguments, based on nothing but speculation,

were grossly improper and highly potent attempts to inflame the juror‘s emotions.

Accordingly, this Court should reverse Mr. Raines‘ death sentences and order a

new sentencing hearing.


      VII. THE TRIAL COURT ERRED BY NOT INTERVENING
           EX MERO MOTU TO PREVENT A PROSECUTOR
           FROM MAKING A GROSSLY IMPROPER STATEMENT
           DURING PENALTY PHASE CLOSING ARGUMENT
           THAT THAT ONLY EVIDENCE ABOUT THE CRIME
           ITSELF CAN BE CONSIDERED AS MITIGATING.
             Assignment of Error No. 84 (Rp. 186)
                                        70

Standard of Review


      If a defendant did not object to closing argument by the State, this Court

reviews the argument to determine whether the argument was so grossly improper

that the trial court abused its discretion by not intervening ex mero motu. State v.

Jones, 355 N.C. 117, 126, 558 S.E.2d 97, 103 (2002).

Discussion
      It is a bedrock principle of death penalty law that under the Eighth

Amendment, a sentencing jury must be able to consider all aspects of a defendant‘s

character, record, or circumstances that might lead the jury to impose a sentence

less than death. McKoy v. North Carolina, 494 U.S. 433, 108 L.E.2d 255 (1990);

Skipper v. South Carolina, 476 U.S. 1, 90 L.Ed.2d 1 (1986); Lockett v. Ohio, 438

U.S. 586, 57 L.Ed.2d 973 (1978). In this case, a prosecutor made a grossly

improper penalty phase closing argument that told jurors that evidence about Mr.

Raines‘ childhood abuse and neglect cannot be deemed mitigating because it does

not pertain to the facts of the crime. The trial court erred by not intervening ex

mero motu to prevent the prosecutor from making this argument.


      During penalty phase closing argument, one of the prosecutors said,


             MR. WALKER: Number 5. And a bunch of these,
             probably 20 of the next 35, are all dealing with the same
             thing. The defendant‘s parents provided an early
             environment of chaos, homelessness, poverty, and the
             father being an alcoholic. Well, many people do.
             Unfortunately. This is not the only person who ever
                                         71

             came from a bad home. All right. And they don‘t all kill
             people. They don‘t all commit armed robbery.

             His own siblings who grew up in the same environment
             have not murdered anybody to the best of our knowledge.
             But he did. Why is that mitigating? Twenty-some years
             ago what happened to him? Should we feel sorry for
             him? Absolutely. I feel sorry for any child who has
             things happen to him that shouldn‘t. And you should feel
             sorry for him. Okay? And that was 25 – 20 years ago in
             his case. Where‘s the connection? Okay? Where is the
             connection? Why does it make what he did to Philip and
             Pam Holder less deserving of the ultimate penalty? We
             are here to talk about and deal with what happened on
             December the 11th, 2002.
(Tpp. 1583-84) (emphases added)


      The prosecutor‘s argument was a grossly improper statement about the law.

Although evidence about a defendant‘s culpability for a murder certainly can be

mitigating, the Supreme Court held in McKoy, Skipper, and Lockett that jurors in a

capital case must be able to consider all aspects of a defendant‘s character, record,

or circumstances that might lead the jury to impose a sentence less than death –

including evidence that is not directly related to the murder, such as a defendant‘s

background and a defendant‘s adjustment to incarceration.


      Indeed, North Carolina law requires and the Eighth Amendment permits a

capital sentencing jury to consider both aggravating and mitigating evidence that is

not directly related to the facts of the murder at issue.         For example, the

aggravating circumstances set out in N.C. Gen. Stat. § 15A-2000(e)(2) and (e)(3)

pertain exclusively to a defendant‘s past – specifically, to prior convictions of a
                                          72

defendant. The statutory mitigating circumstances set out in § 15A-2000(f)(1) and

(f)(7) pertain exclusively to facts that are not directly related to the murder at issue

– specifically, to a defendant‘s prior criminal history and to a defendant‘s age.

North Carolina law requires a trial court to submit the (e)(2) and (e)(3) aggravating

circumstances to the jury is the evidence supports them. North Carolina law

requires a trial court to submit the (f)(1) and (f)(7) mitigating circumstances to the

jury if the evidence supports them, and those factors are deemed mitigating as a

matter of law. In addition, the Eighth Amendment does not require a connection

between mitigation and the murder at issue law. In Tennard v. Dretke, 542 U.S.

274, 159 L. Ed. 2d 384 (2004), the Supreme Court rejected the argument that in

order for evidence to be relevant to mitigation under the Eighth Amendment, the

defense must show that the evidence has a nexus to the crime. Id. at 284, 159

L.E.2d. at 395. For example, the Eighth Amendment permits jurors to consider

evidence of a defendant‘s adjustment to prison as mitigating evidence. Skipper v.

South Carolina, supra. Thus, the prosecutor was clearly wrong in telling the jurors

that the mitigating circumstances relating to the abuse and neglect Mr. Raines

suffered during childhood are not mitigating because they do not pertain directly to

the killings of Philip and Pam Holder on December 11, 2002.


      To be sure, defense counsel sought to persuade the jurors that Mr. Raines‘

background was connected to the killings of the Holders, that he killed them in an

explosion of anger rooted in his childhood abuse and neglect. However, the Eighth
                                        73

Amendment and North Carolina law authorized the jury to deem evidence about

Mr. Raines‘ background to be mitigating even if the evidence did not pertain

directly to the killings of the Holders. Mr. Raines‘ half-sister, Stacy Newall,

poignantly explained the significance of Mr. Raines‘ childhood when she told the

jury why she agreed to testify:


                   Because I feel that, you know, that these wonderful
             people that did take him in, and they are very wonderful
             in my eyes that did take him in, should know where he
             came from if he never told these people that. And this is
             the God‘s truth. And I‘m not saying that that justifies
             what‘s happened. But I‘m saying they need to know.
             And I do love him and hope one day that I can forgive
             him. And this is coming from me.
(Tp. 1370)


      The Eighth Amendment also authorized the jury to deem evidence about Mr.

Raines‘ eventual adjustment to jail as mitigating. The prosecutor‘s argument was

grossly improper because it told the jurors to ignore 29 nonstatutory mitigating

circumstances about Mr. Raines‘ background and about his adjustment to

incarceration that did not pertain directly to the facts of the killings (Mitigating

Circumstances 5-22 and 28-38; see Rpp. 133-39, 144-50)


      The prosecutor‘s argument was grossly improper, and the trial court had a

duty to intervene ex mero motu to prevent and correct the prosecutor‘s incorrect

statement about the law. As a result, this Court should vacate Mr. Raines‘ death

sentences and remand these cases to Superior Court for resentencing.
                                                   74

        VIII. THE TRIAL COURT COMMITTED PLAIN ERROR IN
              ALLOWING THE BY THE STATE TO INTRODUCE
              HEARSAY TESTIMONY ABOUT MR. RAINES’
              BEHAVIOR IN JAIL DURING THE PENALTY PHASE
              THAT VIOLATED THE CONFRONTATION CLAUSE,
              AND DEFENSE COUNSEL PROVIDED INEFFECTIVE
              ASSISTANCE OF COUNSEL BY NOT OBJECTING TO
              THAT TESTIMONY ON THE BASIS OF THE
              CONFRONTATION CLAUSE .
                Assignment of Error No. 70 (Rp. 183)
                Assignment of Error No. 1062

Standard of Review

        If a defendant did not make a timely objection during trial to the State‘s

introduction of evidence, the admissibility of that evidence is reviewable on direct

appeal for plain error. State v. Carroll, 356 N.C. 526, 539, 573 S.E. 2d 899, 908

(2002), cert. denied, 539 U.S. 949.


Discussion


        During the State‘s case in chief at the penalty phase, Officer Charles

McDonald was permitted to read reports prepared by non-testifying officers about

Mr. Raines‘ misconduct in jail after his arrest for the murders of Philip and Pam

Holder. The officer read reports from six different incidents in the jail for the

express purpose of introducing Mr. Raines‘ character into the sentencing

proceeding before the defense had presented any mitigation.                            Trial counsel


        2
          Defendant has filed Defendant-Appellant‘s Motion to Amend Record on Appeal, asking the Court to
permit defendant to add Assignment of Error No. 106.
                                        75

objected to the admission of these incidents on relevancy grounds, but failed to

object on the basis of Confrontation Clause of the United States Constitution or

any other constitutional provisions. The admission of these statements denied Mr.

Raines the right to confront the witnesses against him and subjected Mr. Raines to

cruel and unusual punishment. The failure of trial counsel to raise the proper

constitutional objections to this evidence constitutes ineffective assistance of

counsel. Therefore, this Court should vacate Mr. Raines‘ death sentences pursuant

to the First, Fifth, Sixth, Eighth Amendments to the United States Constitution,

Article I, §§ 14, 19, 23 and 27 of the North Carolina Constitution, N.C. Gen. Stat.

§§ 15A-2000, and Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004)

and its progeny.


              A.    Factual Background.
        Charles McDonald, the captain of the Henderson County Jail, was called by

the State during its case-in-chief at penalty to read incident reports that other

officers had written involving Mr. Raines. He told the jury that ―I will be reading

from the incident report, because, again, that is all I have to go by.‖ Vol. 7, Tp.

1321.


        Mr. McDonald began reading jail incident reports to the jury. The first

incident he read was a report by Deputy Jonathan Tankerslee about what happened

on May 27, 2003.
                                           76

                   THE WITNESS: The officer goes on to state that
            arriving in housing control that he observed that Mr.
            Goodman and Mr. Raines were yelling and throwing
            items in their cells and hitting their cell door.

                   The officer asked what was going on. Mr. Raines
            stated that the cell was filling with water. He—the
            officer saw that the cells—several of the cells were being
            filled with water. He asked the inmates what happened.
            And Mr. Raines stated, ―Here let me show you.‖ He
            began to dip water out of the toilet with his property box.

                  Says the officer then removed the bin boxes on the
            second floor and had two inmates from the pod clean up
            the water. Mr. Goodman and Mr. Raines then attempted
            to incite all of the other inmates to continue dripping
            water into the floor.
(Tp. 1321-22).


      The witness then read to the jury what Mr. Raines told the officers after the

incident.


                   THE WITNESS: Raines made statements such as,
            ―I will kill you just like I put a bullet in their heads,‖ and
            pointed to his forehead. Mr. Raines continued to make
            statements like, ―the State is trying to kill me, but I‘m not
            going to let them. I will drown myself in my toilet before
            I give them the satisfaction.‖

                     ………..

                     It says, quote, I fucked up and I deserve to die, end
            quote.
(Tpp. 1322-23).
                                           77

      The witness then read from a report that described what another officer saw

on June 17, 2003. This officer was responding to reports that a fight was about to

happen.


                     THE WITNESS: Upon entering special housing
              reporting officer saw Raines, William, with mop handle
              raised in the air, cursing at inmate Hamricks, Steven.
              Raines was stating that he, quote, that he was going to
              kick his ass, end quote, calling inmate Hamricks a, quote,
              nigger, end quote.
(Tp. 1329).


      He then read a report of another officer about Mr. Raines‘ behavior on June

18, 2003.


                     THE WITNESS: Mr. Raines‘ behavior consisted
              of (A) throwing a meal tray into the block wall across for
              the cell, (B) throwing Styrofoam out of the cell onto the
              floor, (C) sliding human feces on a paper underneath the
              cell door to the area, (D) refusal to wear his identification
              wristband. Inmate Raines was quoted as saying, quote,
              as long as I‘m not allowed to leave my cell, it is not
              going to be the last time it happens today, end quote.
(Tp. 1331-32).


      Captain McDonald then read to the jury a report about Mr. Raines‘ alleged

attack of inmate Emanuel Overman on July 9, 2003.


                    THE WITNESS: As the cell door opened inmate
              Raines ran to Overman and began striking him with his
              fist.
                                          78

(Tp. 1332).


      Captain McDonald read a report about a July 14, 2004 incident.


                     THE WITNESS: Upon exiting the cell inmate
              Raines pulled a full bag of trash out of the can and started
              throwing it throughout the pod. He then turned over a
              cart with approximately 23 empty food trays and cups on
              same, breaking one of the cups. Raines also kicked the
              trash around, spreading it throughout the pod.
(Tpp. 1333-34).


      Finally, Captain McDonald read a report about what happened on September

8, 2004.


                     THE WITNESS: The description states that
              inmate Raines, William, became irate and began kicking
              the cell door, yelling.

                    …..

                     Raines then threatened upon entering his cell
              stating that he was going to throw feces, urine and spit on
              them.
(Tp. 1334).


      The defense counsel made it clear that they did not want this evidence

introduced against Mr. Raines, and that they felt that such evidence should be

excluded. The issue of whether the State could introduce evidence of Mr. Raines‘

post-crime jail behavior at its case in chief at sentencing was first raised right after
                                        79

the jury returned its verdict during guilt innocence. The defense immediately

objected to these items coming into evidence:


                    MR. RABIL: And we have an objection to that at
              this point, because we feel that it is not going to be
              relevant to an aggravated circumstance.
(Tp. 1292).


      The State argued that jail misconduct testimony was admissible in its case-

in-chief because it was evidence of Mr. Raines‘ bad character. (Tp. 1293). It

further argued that the evidence was made relevant because of information elicited

during cross-examination of a state‘s witness during guilt-innocence, and because

of testimony of the defense expert, Dr. Coppotelli. (Tpp. 1293-94). At the court‘s

request, the State provided the Court and defense with copies of the jail reports it

intended to introduce during its case-in-chief so the court could review the

documents overnight and rule on their admissibility. (Tpp. 1295-96).


      The argument about the admission of this testimony continued the next day

before any evidence was introduced.


                    THE COURT: I read those incident reports last
              night. And I have a couple of questions. First for the
              Defense. Are you going to be asking that – I assume that
              you‘re going to be asking as a mitigator that he is well
              behaved and—
                     MR. RABIL: Well, Your Honor, I considered that
              last night and consulted with another attorney who has
                                           80

              done some capital defense work. And we had to reach
              the conclusion that if we do not request that he is well
              behaved in prison or adjusts well to prison life then—we
              are not going to offer that as a nonstatutory mitigator,
              then it is not relevant.
(Tp. 1298).


      After hearing arguments from both sides, the Court announced its ruling on

the issue.


                      THE COURT:            I‘m going to overrule the
              objection. I‘m going to let them hear it. And I‘m telling
              you that ahead of time, because I think it might have a
              bearing on how you may be proceeding. I don‘t know if
              it will or not. I think in all fairness you need to know that
              ahead of time. I‘m going to let them present that to the
              jury.
(Tp. 1300).


      The defense later reiterated their objection at the beginning of Captain

McDonald‘s testimony.


                    Q. Was there an incident, Captain McDonald,
              involving this defendant --

                    MR. KLINKOSUM: Objection, Your Honor.

                    THE COURT: Overruled.
(Tp. 1320).


      Although trial counsel objected to the introduction of Mr. Raines‘ jail

behavior on relevancy grounds, they never objected on the basis that Mr.
                                         81

McDonald‘s testimony violated the Confrontation Clause or made any specific

objections to any particular incident.


             B.        Legal Analysis
      Mr. McDonald‘s testimony violated the confrontation clauses of both the

Sixth and Fourteenth Amendments to the United States Constitution and Article I,

§§ 23 of the North Carolina Constitution. Officer McDonald never witnessed any

of the incidents he described to the jury. He was merely reading reports prepared

by other officers. The United States Supreme Court has said that testimonial

evidence may not be introduced through hearsay statements unless the State can

show prior cross examination and unavailability of the witness.         Crawford v.

Washington, 541 U.S. 36, 68, 158 L. Ed. 2d 177, 203 (2004). These statements are

clearly testimonial.


                    Statements are non-testimonial when made in the
             course of police interrogation under circumstances
             objectively indicating that the primary purpose of the
             interrogation is to enable police assistance to meet an
             ongoing emergency. They are testimonial when the
             circumstances objectively indicate that there is no such
             ongoing emergency, and that the primary purpose of the
             interrogation is to establish or prove past events
             potentially relevant to later criminal prosecution.

Davis v. Washington, ___ U.S. ___, 165 L. Ed. 2d 224 (2006). The jail reports are

testimonial even though they were not the result of police interrogations.
                                         82

                     Our holding refers to interrogations because, as
              explained below, the statements in the cases presently
              before us are the products of interrogations -- which in
              some circumstances tend to generate testimonial
              responses. This is not to imply, however, that statements
              made in the absence of any interrogation are necessarily
              non-testimonial. The Framers were no more willing to
              exempt from cross-examination volunteered testimony or
              answers to open-ended questions than they were to
              exempt answers to detailed interrogation. (Part of the
              evidence against Sir Walter Raleigh was a letter from
              Lord Cobham that was plainly not the result of sustained
              questioning. Raleigh's Case, 2 How. St. Tr. 1, 27 (1603).)
              And of course even when interrogation exists, it is in the
              final analysis the declarant‘s statements, not the
              interrogator's questions, that the Confrontation Clause
              requires us to evaluate.
Id. at n.1.


       The statements here were reports made by the officer for some sort of future

prosecution, whether it was for Mr. Raines‘ trial or for future disciplinary actions

by the jail against him. The defense was never given the opportunity to cross

examine any of the officers. There was also no evidence that any of the officers

were unavailable. The fact that this violation happened at a capital sentencing

hearing instead of during the guilt-innocence phase of a trial does not limit

Crawford and Davis‘s restriction on testimonial evidence given by out of court

declarants. ―It is well settled in this jurisdiction that while the Rules of Evidence

do not apply at sentencing, the right to confront witnesses does.‖ See State v.

Nobles, 357 N.C. 433, 437, 584 S.E. 2d 765, 769 (2003).
                                         83

      Although the defense never based any of its objections on the Confrontation

Clause, this Court should review the admission of the jail reports for plain error.

This Court has said that constitutional questions not raised and passed upon in the

trial court will not ordinarily be considered on appeal. State v. Benson, 323 N.C.

318, 322, 372 S.E.2d. 517, 519 (1988). In State v. Lemons, 352 87, 92, 530 S.E.2d.

542, 545 (2000), cert. denied, 531 U.S. 1091, 148 L.E.2d. 698 (2001), however,

this Court invoked Rule 2 of the North Carolina Rules of Appellate Procedure to

consider a Confrontation Clause issue at a capital sentencing hearing even though

the defendant had never objected to the admission of the statement on any

constitutional grounds. ―This Court has a long precedent of reviewing the record

of capital cases to ascertain whether the trial court committed reversible error.‖ Id.

This Court said that since the constitutional error was not raised at trial, the

question would be reviewed using a plain error analysis. Id.


      The admission of the jail reports constitutes plain error. ―A plain error is

one so fundamental as to amount to a miscarriage of justice or which probably

resulted in the jury reaching a different verdict than it otherwise would have

reached.‖ State v. Carroll, 356 N.C. 526, 539, 573 S.E. 2d 899, 908, cert. denied,

539 U.S. 949, 156 L.Ed.2d. 640 (2002).           The reports of the jail officials

fundamentally affected the penalty phase. Before Mr. McDonald testified, the jury

had only heard about one jail incident. During the guilt-innocence phase, Steven
                                        84

Justus testified that he worked at the Henderson County Detention Center, and had

seen an altercation between Mr. Raines and another inmate. (Tpp. 966-68). Mr.

McDonald‘s testimony made it seem that Mr. Raines‘ behavior in jail was a

constant problem that continued during his pretrial confinement. The reports also

depicted Mr. Raines as a racist who referred to an African American as a ―nigger‖

and that Mr. Raines himself believed that the death penalty was his appropriate

punishment. Since the defense could not cross-examine the guards who witnessed

this behavior, the defense could not effectively challenge or mitigate this

devastating evidence.


      Additionally, the failure of defense counsel to object to this evidence on

confrontation grounds violated Mr. Raines‘ right to effective assistance of counsel.

A defendant is entitled to relief for ineffective assistance of counsel if he

establishes that his trial counsel‘s conduct did not meet objective standards of

reasonableness under prevailing professional norms for attorneys engaged in the

trial of a capital murder case, and a as a result of this deficiency, there is a

reasonable probability that the result of the proceeding would have been different.

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

would not have been admitted except for counsel‘s deficiencies.          Counsel‘s

objections on relevancy grounds demonstrate that they did not want the evidence

of bad jail behavior to be introduced. In fact, counsel argued against the admission
                                        85

of the evidence on two separate days. The trial court announced that it would

overrule the defense‘s relevancy objections before the start of the penalty phase

evidence, which should have given the defense enough time to prepare alternative

objections to the evidence after their original objections were overruled. Mr.

McDonald made it clear from the beginning of his testimony that he had not

personally witnesses any of Mr. Raines‘ misconduct.


      Crawford was decided in 2004, and attorneys representing a capital

defendant in September of 2005 should have been aware that out of court

statements being offered for the truth of the matter asserted could be challenged on

the basis of the Confrontation Clause. Counsel should have also been aware that

this Court has said that a defendant does not preserve a challenge to a hearsay

statement based on the Confrontation Clause unless the defendant makes a

constitutional basis for the objection. Lemons, 352 N.C. at 91-92, 530 S.E.2d. at

545 (2000).


      ―[Ineffective assistance of counsel] claims brought on direct review will be

decided on the merits when the cold record reveals that no further investigation is

required, i.e., claims that may be developed and argued without such ancillary

procedures as appointment of investigators or an evidentiary hearing.‖ State v.

Fair, 354 N.C. 131, 166, 557 S.E.2d. 500, 524 (2001) cert. denied, 535 U.S. 1114,

153 L.Ed.2d. 162 (2002). In State v. al-Bayyinah, 359 N.C. 741, 751-53, 616
                                          86

S.E.2d. 500, 509-10 (2005), cert. denied, ___ U.S. __, 164 L.Ed.2d. 528 (2006),

this defendant raised an ineffective assistance of counsel claim on direct appeal

based on his attorneys‘ failure to cross-examine a key witness with testimony from

the defendant‘s original trial. This Court said that it could not decide the case on

direct appeal because trial counsel‘s possible strategic reasons were not apparent

from the record. Id. It therefore dismissed the issue without prejudice to the

defendant‘s right to raise the claim in a post-conviction motion for appropriate

relief. Id. at 753, 616 S.E.2d. at 510.


      This case is distinguishable from al-Bayyinah because it is apparent from the

record that there was no strategic reason for counsel‘s failure to make a

constitutional objection in this case. Counsel did object to this evidence and

strenuously argued for its exclusion. Counsel obviously recognized how damaging

the jail reports would be to Mr. Raines. Counsel, however, failed to recognize that

these reports could have and should have been excluded based on the

Confrontation Clause, and counsel therefore was ineffective for failing to lodge an

objection on those grounds.


      While all of the prior incidents recounted by Captain McDonald should have

been excluded because they violated the Confrontation Clause, the State‘s

admission of one of the prior incidents also violated Defendant‘s First and

Fourteenth Amendments rights under the United States Constitution and Article I,
                                        87

§ 14 of the North Carolina Constitution. One of the reports read by McDonald

described an argument between Mr. Raines and another inmate. At the end of the

argument, Mr. Raines said he was going to ―kick his [the other inmate‘s] ass.‖ Mr.

Raines then called the other inmate a ―nigger.‖ (Tp. 1329).


      Mr. Raines‘ use of the word ―nigger‖ is troubling and highly offensive. His

right to use that word, however, is protected by the First Amendment to the United

States Constitution. In Dawson v. Delaware, 503 U.S. 159, 117 L. Ed. 2d 309

(1992), the United States Supreme Court said that it was error for the prosecution

to introduce evidence during the penalty phase of a capital trial that the defendant

belonged to a white supremacist group. Id. at 163, 117 L.E.2d. at 316. The Court

noted that membership in such a group was protected by the First Amendment. Id.

at 163-64, 117 LE.2d. at 316. The Court said that the defendant‘s connection to a

racist group could be relevant if it had something to do with the killing. For

example, the Court said that if there was a racial motive for the murder, then the

defendant‘s racist ties would be admissible. Id. at 164-65, 117 L.E.2d. at 316-17

In Dawson, however, both the defendant and victim were white, and there was no

evidence that defendant‘s membership in the group or his racist beliefs had

anything to do with the murders. Id. at 166-67, 117 L.E.2d. at 318. Also, it would

be error for the State to introduce such evidence as ―bad character evidence‖ to

rebut ―good character‖ evidence because since the Constitution protected his
                                          88

membership in that group, membership in the group could not be offered as bad

character evidence. Id. at 167-68, 117 L.E.2d. at 318-19.


      In this case, the fact that Mr. Raines used a racial epithet is not relevant to

any issue in the case. Both Mr. Raines and the victims in this case are white.

There was no evidence that racism or Mr. Raines‘ racial views played any role in

the crimes. The use of this constitutionally protected speech had no relevance to

any of the mitigating or aggravating circumstances in this case. Under Dawson,

activity protected by the First Amendment can only be introduced against a

defendant in a capital sentencing hearing if it is ―relevant to an issue in the capital

sentencing proceeding.‖ State v. Atkins, 349 N.C. 62, 95, 505 S.E. 2d 97, 118

(1998), cert. denied, 526 U.S. 1147, 143 L.E.2d. 1036 (1999).


      The trial court‘s failure to intervene and strike this testimony constitutes

plain error. This was evidence that was improperly before the jury that made Mr.

Raines appear to be racist when racism and race had nothing to do with this case.

As was the case in Lemons, this Court should review this issue for plain error even

though there was no constitutional objection lodged at trial. Additionally, since it

is apparent from the record that trial counsel would have no strategic reason not to

object to this incident, it is appropriate for this Court to determine whether

counsel‘s failure to object to this evidence on First Amendment grounds constitutes

ineffective assistance of counsel. Since this evidence was highly prejudicial, and
                                         89

since trial counsel clearly wanted all of these incidents excluded from trial,

counsel‘s failure to object on First Amendment grounds constitutes ineffective

assistance of counsel.


      Since the State was allowed to get in highly prejudicial evidence about jail

misconduct by Mr. Raines, in violation of both the Confrontation Clause and the

First Amendment, Mr. Raines‘ death sentence must be vacated.


      IX.    THE TRIAL COURT ERRED BY REJECTING
             DEFENDANT’S REQUEST TO GIVE A PEREMPTORY
             INSTRUCTION   ON    THE   (f)(2) MITIGATING
             CIRCUMSTANCE,    WHERE     UNCONTROVERTED
             EVIDENCE PROVED THAT MR. RAINES WAS UNDER
             THE INFLUENCE OF A MENTAL OR EMOTIONAL
             DISTURBANCE AT THE TIME OF THE KILLINGS.
             Assignment of Error No. 81 (Rp. 186)
Standard of Review

      The question of whether a trial court erred by rejecting a defendant‘s request

for a proper instruction that is supported by the evidence is a question of law. This

court reviews questions of law de novo. Stanton v. Brame, 136 N.C. App. 170, 523

S.E.2d 424 (1999).


Discussion

      During the guilt-innocence phase charge conference, defense counsel asked

the trial court to give a peremptory instruction on the mitigating circumstance

under N.C. Gen. Stat. § 15A-2000(f)(2), that Mr. Raines was under the influence of
                                         90

a mental or emotional disturbance at the time of the killings. (Tpp. 1560-61)

Although the trial court instructed the jury on (f)(2), it rejected defense counsel‘s

request to give a peremptory instruction on (f)(2). (Tpp. 1563, 1679-81)


      The State retained Dr. Coppotelli as an expert in forensic psychology to

evaluate Mr. Raines‘ mental condition at the time of the killings. However, it was

the defense that called Dr. Coppotelli as a witness. As discussed above, in the

Statement of the Facts, Dr. Coppotelli diagnosed as suffering from mild to

moderate depression for his entire life, attachment disorder and dependency that

are rooted in the abuse and neglect he suffered at the hands of his parents and

grandmother as a child, and a longstanding substance abuse problem, especially

with crack and ephedrine.


      Although Dr. Coppotelli acknowledged that Mr. Raines robbed the Holders

to get money to buy crack, she concluded that it was Mr. Raines‘ attachment

disorder and his deep-seated fear of abandonment that triggered his explosive

anger that night and led him to kill Philip and Pam. Dr. Coppotelli explained that

Mr. Raines ―had significant attachment disturbance and abandonment issues from

his abusive childhood, which when significantly triggered would potentially

provide the impetus to acting his fears and frustrations.‖ (Tp. 1114) As a result,

Dr. Coppotelli stated, in the early morning of December 11, when Mr. Raines was


             facing the angry and upset reactions of his friend, his
             protector, his attachment figure, Philip Holder, his
                                       91

             attachment and abandonment issues were activated like
             never before. To his immense distress he was being
             severely reprimanded, having to give back his keys,
             being given a sleeping bag and asked to leave. All of
             which are appropriate ways to responding to an addictive
             person acting out behavior. But they had the impact on
             Mr. Raines of – of touching on sensitized areas of his
             background and personality.
(Tpp. 1114-15)


      Based on Dr. Coppotelli‘s testimony, the trial court instructed the jury on

(f)(2), as follows:


             Now, you would find this mitigating circumstance if you
             find from the evidence that the victim had told the
             defendant that he could not remain in the victim‘s home
             or that the defendant had consumed or used cocaine and
             that this caused him to become enraged and that as a
             result the defendant was under the influence of some
             mental or emotional disturbance when he killed the
             victim.
(Tp. 1680)


      The State did not call any expert witness or submit any other evidence to

counter Dr. Coppotelli‘s diagnosis or her conclusion about how Mr. Raines‘ mental

and emotional problems triggered his violent rage when Philip Holder kicked him

out of the trailer.   The only evidence relevant to (f)(2) was Dr. Coppotelli‘s

uncontroverted diagnosis and opinion about Mr. Raines‘ mental and emotional

problems. Since Dr. Coppotelli‘s testimony demonstrated that Mr. Raines was

acting under the influence of these mental and emotional problems when he killed
                                          92

the Holders, the trial court had a duty to give a peremptory instruction on (f)(2), as

defense counsel requested. The trial court erred, then, by rejecting this request.


      The State cannot prove that this error was harmless beyond a reasonable

doubt. As this Court explained in State v. Holden, 338 N.C. 394, 403, 450 S.E.2d

878, 883 (1994), although the Issues and Recommendation form shows that one or

more jurors found the (f)(2) circumstance in both cases (Rpp. 133, 144), it is

impossible to determine whether the trial court‘s erroneous refusal to give a

peremptory instruction on (f)(2) led other jurors to reject (f)(2). For this reason,

the State cannot prove that this error was harmless beyond a reasonable doubt.


      In light of the trial court‘s erroneous refusal to give a peremptory instruction

on (f)(2), this Court should vacate Mr. Raines death sentences and order a new

capital sentencing hearing.


      X.     THE TRIAL COURT VIOLATED THE STATE AND
             FEDERAL CONSTITUTIONS AND N.C. GEN. STAT.
             15A-2000  BY    SUBMITTING   DUPLICATIVE
             AGGRAVATING    CIRCUMSTANCES   WHEN    IT
             SUBMITTED    BOTH     THE   AGGRAVATING
             CIRCUMSTANCE THAT THE CAPITAL CASE WAS
             COMMITTED FOR PECUNIARY GAIN AND THAT
             THE CAPITAL CRIME WAS COMMITTED IN THE
             COMMISSION OF A ROBBERY.
             Assignment of Error No. 77 (Rp. 185)
                                        93


Standard of Review

      The question of whether a trial court erred by overruling a capital

defendant‘s objection to the submission of two aggravating circumstances on the

ground that they are duplicative is a question of law, subject to de novo review by

this Court. State v. East, 345 N.C. 535, 553-54, 481 S.E. 2d 652, 664 (1997), cert.

denied, 522 U.S. 918 (1997); State v. Howell, 335 N.C. 457, 439 S.E. 2d 116

(1994).

Discussion
      Over Mr. Raines‘ objection (Tpp. 1547-48), the trial court submitted to the

jury in each case the aggravating circumstances whether the murder was

―committed while the defendant was committing or attempting to commit a

robbery,‖ N.C. Gen. Stat. § 15A-2000(e)(5), and whether this murder was

―committed for pecuniary gain.‖ N.C. Gen. Stat. § 15A-2000(e)(6). (Tpp. 1672-

74, 1707; Rpp. 131-32, 142-43). The jury found both circumstances. (Rpp. 131-

32, 142-43). It was prejudicial, constitutional error for the trial court to submit

both of these circumstances because these two circumstances completely

overlapped each other and one plainly comprises the other. Therefore, Defendant's

death sentence violates the Eighth and Fourteenth Amendments to the United

States Constitution, Article I, § 27 of the North Carolina Constitution, N.C. Gen.
                                          94

Stat. § 15A-2000, State v. Quesinberry, 319 N.C. 228, 354 S.E. 2d 446 (1987), and

its progeny.


      Mr. Raines was convicted of a single count of robbery with a dangerous

weapon. The evidence tended to show that right after he killed Philip and Pamela

Holder, he stole their truck, numerous rifles, a credit card, and checks. Mr. Raines

then drove the truck to various places attempting to get money. He went to a store

and tried to cash a check in Philip‘s name. (Tp. 594). He went to a used car

dealership in Asheville and attempted to sell the manager of the business the

trucker‘s camper cover (Tp. 605) and the Holders‘ rifles. (Tpp. 606-08). He then

used Philip‘s credit card at a Super 8 Motel. (Tpp. 847-48). He was arrested in

Greenville County, South Carolina inside Philip‘s truck two days after the Holders‘

bodies were found. (Tpp. 746-54).


      At the charge conference, the State argued it was entitled to both the robbery

and pecuniary gain aggravating circumstances because there were facts that

justified the admission of each of those circumstances.


                      MR. WALKER: The separate facts that would
               justify each of these circumstances would be that robbery
               of the truck was not done for pecuniary gain.
                     THE COURT: Right.
                      MR. WALKER: He simply robbed him and took
               his truck for his own use to go around.
                                         95

                    THE COURT:        And you want the rifles to be
              pecuniary gain.

                     MR. WALKER: The rifles were taken for the
              specific purpose of pecuniary gain. And the credit cards
              for pecuniary gain.
(Tp. 1547). The trial court agreed that the evidence supported the submission of

the two aggravating circumstances.


      The court gave the following limited instruction concerning the robbery

circumstance.


                    THE COURT: Now, I instruct you as you
              consider this issue, that you may only consider the
              evidence as it relates to the truck.
(Tp. 1672).


      The court gave this instruction in its instructions on the pecuniary gain

circumstance.


                     THE COURT: I instruct you that as you consider
              this potential aggravating circumstance you may only
              consider any evidence that you have heard as it relates to
              credit card, check, and the guns.
(Tp. 1673).


      In closing argument, however, the State‘s argument for why the jury should

find the robbery circumstance was not in any manner limited to the truck.


                    MR. WALKER: Was this murder committed
              while the defendant was committing or attempting to
                                        96

            commit robbery? Well, obviously, you know the answer
            to that. You found that… Tuesday… in your verdict.
            You found the man guilty of armed robbery. And we
            know that they were killed while that was going on. You
            found him guilty of felony murder. So clearly the answer
            to that is, No. 1, doesn‘t require much more talking.
(Tpp. 1574-75).


      The submission of both the pecuniary gain and robbery circumstances in this

case violated this Court‘s dictates. In Quesinberry, the trial court submitted both

the aggravating circumstance of whether the murder occurred during the course of

an armed robbery, N.C. Gen. Stat. § 15A-2000(e)(5), and whether the murder was

committed for pecuniary gain, N.C. Gen. Stat. § 15A-2000(e)(6). This Court

stated:


                    The new question before us - one of first
            impression in our jurisdiction - is whether these two
            factors, when submitted together for the purposes of
            sentencing a defendant convicted of first degree murder
            on the basis of premeditation and deliberation, are
            redundant. We conclude that one plainly comprises the
            other. Although the pecuniary gain factor addresses
            motive specifically, the other cannot be perceived as
            conduct alone, for under the facts of this case the motive
            of pecuniary gain provided the impetus for the robbery
            itself. Admittedly, situations are conceivable in which an
            armed robber murders motivated by some impulse other
            than pecuniary gain, e.g., where the robbery is committed
            to obtain something of purely reputational or sentimental,
            rather than pecuniary, value. The facts of this case,
            though, reveal that defendant murdered the shopkeeper
            for the single purpose of pecuniary gain by means of
            committing an armed robbery.
                                        97

319 N.C. at 228, 481 S.E.2d. at 452.


      Since Quesinberry, this Court has clarified when it is error for two

aggravating circumstances to be submitted.


                   It is established law in North Carolina that it is
            error to submit two aggravating circumstances when the
            evidence to support each is precisely the same.
            Conversely, where the aggravating circumstances are
            supported by separate evidence, it is not error to submit
            both to the jury, even though the evidence supporting
            each may overlap.
State v. East, 345 N.C. 535, 553-54, 481 S.E. 2d 652, 664 (1997) (citations

omitted). In this case, the evidence supporting the two aggravating circumstances

is identical. All of the items stolen were taken from the same persons, at the same

time, and at the same incident. Since all of the items were apparently owned by

Philip Holder, Mr. Raines could only have been, and was, convicted of one count

of robbery. State v. Suggs, 86 N.C. App. 588, 359 S.E. 2d 24 (1987) (if all items

taken in robbery at a single incident are owned by the same person, then defendant

can only be convicted of a single robbery even if those items were actually taken

from more than one individual).


      The State‘s argument at trial that the gun, checks and credit card were taken

for pecuniary gain while the truck was stolen for a completely different purpose—

to go around town—is a legal fiction. The evidence was that Mr. Raines used the
                                         98

truck to get to the different venues where he attempted to get money from the

stolen items. Mr. Raines even attempted to sell part of the truck for cash.


      Even if there was some difference in the motives for taking the different

items, it is not reasonable to assume that the jury would have considered that in

deciding whether to find each aggravating circumstance. First of all, this is not a

reasonable distinction that people with common sense would make. While the

instructions said consider only specific items for each aggravating circumstance,

the jury was never told why its consideration was limited to each of the items.

Further, Mr. Walker‘s argument about the robbery aggravating circumstance

certainly added to the jury‘s belief that there was no real difference between the

robbery and pecuniary gain circumstances.


      The instructions in this case do not cure the harm recognized in Quesinberry.

If a defendant took $15 from a victim, it would certainly violate the edicts of this

Court for the trial court to use the taking of the money to submit both the pecuniary

gain and robbery aggravating circumstances.             The submission of both

circumstances would violate Quesinberry even if the court told the jury to only

consider the stealing of the $10 bill for the pecuniary gain aggravating

circumstance and the $5 bill for the robbery circumstance.         For all practical

purposes, that is exactly the situation we have in this case. The court‘s division of
                                         99

the stolen property into different categories does not support the submission of

both aggravating circumstances.


      Mr. Raines recognizes that this Court has upheld the submission of both the

pecuniary gain aggravating circumstance, N.C. Gen. Stat. § 15A-2000(e)(6), and

the aggravating circumstance that the defendant was engaged in a robbery, N.C.

Gen. Stat. § 15A-2000 (e)(5) in other cases. See State v. Davis, 353 N.C. 1, 539

S.E.2d. 243 (2000); State v. East, 345 N.C. 535, 481 S.E.2d. 652 (1997). To the

extent these cases support the submission of both aggravating circumstances in this

case, this Court should revisit the holdings in those cases. It goes against the well-

thought-out reasoning in Quesinberry to allow the legal fiction that there are two

distinct aggravating circumstances when the evidence truly only supports one

circumstance. Allowing the submission of two aggravating circumstances in a

case like this one will tend to confuse the jury about its responsibility to only

consider different aggravating circumstances if they are supported by different

evidence. It also sets a confusing precedent for superior courts about when to

submit both the pecuniary gain and robbery circumstances, after Quesinberry made

it clear that the submission of both circumstances should be very rare.


      The submission of both the pecuniary gain and burglary aggravating

circumstances entitles the defendant to a new sentencing hearing. ―Because it is

impossible now to determine the weight ascribed to each aggravating circumstance
                                         100

by the jury recommending the sentence of death‖ this error cannot be deemed

harmless beyond a reasonable doubt. State v. Howell 335 N.C. 457,475, 439

S.E.2d. 116, 126 (1994) (finding reversible error because the submission of both

the burglary aggravating circumstance and the pecuniary gain aggravating

circumstance was duplicative). This Court also found that improper submission of

both aggravating circumstances under N.C. Gen. Stat. § 15A-2000(e)(5) and (e)(6)

was reversible error in Quesinberry. Since the trial court‘s errors pertaining to this

claim violated the Defendant‘s rights under the Eighth and Fourteenth

Amendments to the United States Constitution as well as Article I, § 27 of the

North Carolina Constitution, the standard of proof for demonstrating prejudice is

governed by N.C. Gen. Stat. § 15A-1443(b). Therefore, the State must prove that

the error is harmless beyond a reasonable doubt. However, even if this claim is

governed by § 15A-1443(a), the prejudice of submitting duplicative aggravating

circumstances was so severe that Mr. Raines should prevail under that standard of

prejudice as well, and his sentences must be vacated.


      XI.    THE TRIAL COURT COMMITTED PLAIN ERROR IN
             ALLOWING MEMBERS OF THE VICTIMS’ FAMILY
             TO TESTIFY ABOUT IRRELEVANT BUT HIGHLY
             PREJUDICIAL MATTERS CONCERNING HOW
             FAMILY MEMBERS REACTED TO HEARING ABOUT
             THEIR RELATIVES’ DEATHS.
             Assignment of Error No. 51 (Rp. 178)
             Assignment of Error No. 52 (Rpp. 178-79)
             Assignment of Error No. 54 (Rp. 179)
                                         101

Standard of Review
      If a defendant did not object at trial to the introduction of evidence by the

State, this Court reviews the admissibility of that evidence for plain error. State v.

Carroll, 356 N.C. 526, 539, 573 S.E. 2d 899, 908 (2002), cert. denied, 539 U.S.

949, 156 L. Ed. 2d 640 (2003).


Discussion


      The trial court committed plain error during the guilt-innocence phase by

repeatedly allowing members of the victims‘ family to describe the impact Phillip

and Pam Holder‘s deaths had on them. This evidence was completely irrelevant to

any of the issues in the guilt-innocence phase and was highly prejudicial to Mr.

Raines. Its admission violated Mr. Raines‘ rights under the Fifth, Sixth, Eighth

and Fourteenth Amendments to the United States Constitution, Article I, §§ 19, 23

and 27 of the North Carolina Constitution, and North Carolina Rules of Evidence

401, 402, 403 and 404.


             A.    Factual Background
      Pamela Holder‘s sister, Rhonda Whitaker, was the first witness called by the

State. (Tp. 394). She told the jury about Pam‘s life, Pam‘s relationship with

Philip, and Philip and Pam‘s relationship with Mr. Raines. She also told the jury

about how she found out about her sister and brother-in-law‘s death. Mrs. Holder

also described her mother‘s reaction to hearing her daughter had been killed.
                                          102

               A: And then I had to – I had to go to the nursing home
               and tell my mother—

               THE COURT: Here you are, ma‘am.

               A. –what had happened to Pam. And I called my
               mother‘s preacher who was also my preacher when I was
               growing up. And she met me out there along with my
               father-in-law and my aunt. And we had some very close
               friends that had visited with her that afternoon and they
               stayed there with her until we got there to keep her from
               watching the news, because she is an advocate [sic]
               News 13 watcher.

               And she—the preacher walked in the room and I was
               standing outside of the room and she started hollering no,
               no, no. She was completely just devastated. Two
               months later in February she died as a result of grieving
               and depression.
               MR. RABIL: Objection.

               THE COURT: Sustained. Disregard the last part as to
               why she died, members of the jury.
(Tp. 409).


      Ms. Whitaker also described her own reaction to her sister‘s death. She

described a member of the sheriff‘s department coming to the house to inform her

of the news.


               A. And I always knew with [my husband] working with
               the Sheriff‘s Department that there was a possibility that
               you would have that you would have that officer coming
               to your door to tell you that something had happened. I
               just never dreamed that it would be something as awful
               as this.
                                        103

             Royal Parrish [of the Henderson County Sheriff‘s
             Department] walked in the house. I just – I was about ten
             weeks pregnant at the time and not feeling very well.
             And I just started screaming.

(Tp. 408).


      The State‘s next witness was Patricia Holder, the mother of Philip Holder.

On direct examination, she discussed the relationship between Mr. Raines and

members of her family, including the victims. On cross examination, the defense

asked her a question about Mr. Raines‘ relationship with Pam and Philip‘s son.


             Q: And Billy was around [DH] a lot over the years; is
             that true?

             A: Yes Billy was around [DH] a lot and [DH] loved
             Billy. And when this happened I got [DH] on my lap
             when I for sure found out it was Philip and Pam. I don‘t
             know, so I didn‘t tell him.
             And when I really found out I got him on my lap and I
             said, ―[DH], Philip and Pam won‘t be coming back
             because they have been killed.‖ I said, ―Billy evidently
             has shot both of them and killed them.‖ [DH] says – I
             said, ―You won‘t get to see them any more, but Maw-
             Maw is going to take care of you.‖

             He said – now this a six year-old. [DH] said, ―Maw-
             Maw, is Billy going to heaven to Philip and Pam because
             I know that‘s where they are going, or is God going to let
             him burn?‖

             Now that‘s what a six year-old said. It‘s very hard to
             have to tell a little child something like that.

             Q: Yes, ma‘am.
                                          104

             A: He said, ―Billy was my best buddy. And I hope he
             doesn‘t go to the devil‘s house.‖ He said, ―Do you think
             God is going to forgive Billy?‖ And I said, ―That‘s
             between Billy and God. Billy can be in heaven if he will
             just let God forgive him for what he does.‖ I said, ―Some
             day they might all be in heaven walking around together,
             and them when you go, can you join them.‖
(Tp. 449).


          B. Legal Analysis


      The testimony of Ms. Whitaker and Mrs. Holder about their family‘s

reaction to Pam and Philip Holder‘s death is heart-wrenching. It is also completely

irrelevant to any of the issues at the guilt-innocence phase. Under North Carolina

Rule of Evidence 402‖ evidence which is not relevant is not admissible.‖ Relevant

evidence is evidence ―having any tendency to make the existence of any fact that is

of consequence to determination of the action more probable or less probable than

it would be without the evidence.‖ N.C. Rule of Evidence 401. The only issue at

the guilt-innocence phase was whether Mr. Raines is guilty of first-degree murder

and robbery with a dangerous weapon. How members of the victims‘ family

reacted to the tragic news of their deaths had no relevance to any of the issues

being litigated at that stage of the trial. See State v. Page, 215 N.C. 333, 1 S.E.2d.

887 (1939) (evidence of a victim‘s characteristics irrelevant to a rape trial).


      This Court has said that evidence of how a murder affects the victim‘s

family members is admissible at a capital sentencing hearing. ―[T]he State should
                                          105

be given some latitude in fleshing out the humanity of the victim so long as it does

not go too far.‖ State v. Reeves, 337 N.C. 700, 723, 448 S.E. 2d 802, 812 (1994),

cert. denied, 514 U.S. 1114, 131 L. Ed. 2d 860 (1995). While the humanity of a

victim may not be relevant in the strictest sense to any of the sentencing issues, it is

certainly much more relevant to the sentencing process than in the guilt-innocence

stage of the trial where the jury is asked to answer the objective question of

whether a defendant has committed a particular crime.


       Although ordinarily the admittance of irrelevant evidence is considered

harmless, ―if the only effect of the evidence is to excite prejudice or sympathy, its

admission may be grounds for a new trial.‖ Kenneth S. Broun, BRANDIS & BROUN

ON   NORTH CAROLINA EVIDENCE, Sixth Edition, § 84, pages 242-43. See State v.

Simpson, 297 N.C. 399, 255 S.E.2d. 147 (1979) (murder conviction vacated,

despite defendant‘s confession, because of admission of evidence that defendant

sodomized a dog). An examination of Ms. Whitaker and Mrs. Holder‘s testimony

shows the only effect of this testimony was to create sympathy for the victims and

to excite prejudice against Mr. Raines. The jurors heard about a mother screaming

upon hearing about the murder of her daughter. They heard about how a pregnant

women found out her sister had been killed.          Finally, they heard in detail a

description of a grandmother telling a six year-old child that a close friend of the

family had just killed his parents.
                                        106

      The defense did not object to most of the evidence concerning the family‘s

reactions.     Under the circumstances, counsel‘s failure to object was

understandable. In State v. Jones, 355 N.C. 117, 558 S.E. 2d 97 (2002), this Court

vacated the defendant‘s death sentence for improper closing arguments even

though counsel failed to object to some of the improper arguments. ―As for the

effect of a defendant's failure to object to improper remarks, this Court is mindful

of the reluctance of counsel to interrupt his adversary and object during the course

of closing argument for fear of incurring jury disfavor.‖ Id. at 129, 558 S.E.2d. at

105. This Court made this ruling in Jones even though counsel had objected to

some of the State‘s closing. Id. at 132, n.2, 558 S.E.2d. at 107, n.2. In this case,

had counsel objected, they were facing an even greater risk of incurring a jury‘s

disfavor.    Any objection would have interrupted the testimony of grieving,

sympathetic family members. The trial court should have saved counsel from this

dilemma and intervened sua sponte to stop the prejudicial testimony.


      The court did sustain the one objection the defense made to this testimony.

It sustained an objection to Ms. Whitaker‘s testimony that Pam‘s death caused their

mother‘s death two month later because of grief and depression. That ruling by the

court did not correct the harm caused by the rest of Ms. Whitaker‘s description of

how her mother reacted to Pam‘s death because the court specifically told the jury
                                        107

to only disregard the portion of her testimony relating to her opinion as to why her

mother died. The rest of the testimony was left undisturbed by the court.


      Mrs. Holder‘s improper testimony about how she told her grandson about

his parents‘ death occurred during cross-examination. The fact that she gave the

response while the defense was questioning her does not relieve the trial court of

the responsibility to intervene. The defense merely asked Mrs. Holder about her

grandson‘s relationship with Mr. Raines. Her answer to the question was non-

responsive to that question, and since it contained irrelevant information, it should

have been stricken.


      Dr. Heidi Coppotelli‘s testimony demonstrated that Mr. Raines did not act

with deliberation when he killed Pam and Philip Holder, and therefore, that the

killings were not premeditated and deliberate first-degree murder.          The State

offered no mental health experts who contradicted Dr. Coppotelli. The defense,

however, could not overcome the sympathetic and prejudicial story of how the

Holders‘ family members reacted to their deaths. This testimony fundamentally

effected the trial. The court committed plain error in failing to intervene sua

sponte.
                                                  108

        XII. THE TRIAL COURT ERRED IN OVERRULING MR.
             RAINES’ OBJECTION TO A GUILT-INNOCENCE
             PHASE    VERDICT   FORM     THAT   WAS
             UNCONSTITUTIONALLY    SUGGESTIVE    AND
             CONFUSING.
                        Assignment of Error No. 1073
Standard of Review
        The question of whether a jury verdict form is correct is a question of law.

This Court reviews questions of law de novo. Stanton v. Brame, 136 N.C. App.

170, 523 S.E.2d 424 (1999).


Discussion


        The trial court committed reversible error by submitting a verdict form in

guilt-innocence that was both suggestive and confusing. The verdict form told the

jury that it was to answer ―yes‖ to one or more of the theories for first-degree

murder. The court‘s instructions violated Mr. Raines‘ rights under the Fifth, Sixth,

Eighth and Fourteenth Amendments to the United States Constitution, and Article

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


        The verdict form read as follows for each count of first degree murder:


                     ____ GUILTY OF FIRST DEGREE MURDER
                OF [VICTIM]



        3
          Defendant has filed Defendant-Appellant‘s Motion to Amend Record on Appeal, asking the Court to
permit defendant to add Assignment of Error No. 107.
                                          109

                    IF YOU ANSWER ―YES‖, IS IT: (You should
              answer both, and you may answer “yes” to either or
              both)

                  _____ A.               PREMEDITATION              AND
              DELIBERATION?
              ______ B. UNDER THE FIRST DEGREE FELONY
                   MURDER RULE?
      (Rpp. 81-82). (emphasis added).



      The court told both sides of its plan to include the italicized language at the

instruction conference.      The defense immediately objected to the court‘s

suggestion.


                   MR. RABIL: We would object to that.               That
              sounds suggestive almost.

                    THE COURT: Well, it might.
                    MR. RABIL: I would ask the Court to go straight
              by the verdict sheet.
                     THE COURT: Well, no. Let‘s see. I‘m going to
              put this: You should answer both, and you may answer
              yes, either or both.

                     MR. RABIL: I would ask that the Court just to
              insert either yes or no to either or both.
                     THE COURT: You should answer both. That‘s a
              directive. You have to answer it. They have to tell me
              whether they found him guilty under which theory. You
              should answer both. Comma, and you may answer yes to
              either or both.
                     You only get to that—they have to answer yes to
              one if they find him guilty. And it is either – it‘s just to
                                        110

             let them know you can answer yes to both or either as the
             case may be.

      (Tpp. 1158-59).



      The court erred in overruling the defense‘s objection to the language about

answering yes to one or both theories. The court should not have included the

language ―You should answer both, and you may answer ―yes‖ to either or both‖

on the verdict sheet. The additional language likely confused the jury. Since the

verdict sheet says that the jury is required to answer both questions, jurors could

well have believed they were expected to find the defendant guilty of first-degree

murder. By implying that the jury should find the defendant guilty of first-degree

murder, the verdict sheet violates the defendant‘s rights under In re Winship, 397

U.S. 358, 364, 25 L. Ed. 2d 368, 375 (1970) (Prosecution required to prove every

fact beyond a reasonable doubt).


      While the jury was told in instructions that, in addition to finding defendant

guilty of first-degree murder, they could find the defendant guilty of second-degree

murder or not guilty, those instructions were undercut by the improper verdict

form. If the verdict form contains unconstitutional instructions that contradict

proper jury instructions, it is still reversible error. See State v. McHone, 174 N.C.

App. 289, 620 S.E. 2d 903 (2005) (court finds plain error when verdict form fails

to include ―Not Guilty‖ as a possibility, even though jury instructed they could
                                          111

consider not guilty as a verdict.) See also Boyde v. California, 494 U.S. 370, 379-

80, 108 L. Ed. 2d 316, 328 (1990) (when a case is submitted to the jury on

alternative theories, unconstitutionality of one of the theories requires the judgment

be set aside.)


      Even if the jurors understood that they did not have to find Mr. Raines guilty

of first-degree murder, the verdict sheet still left the clear impression that the judge

believed the jury would and should find Mr. Raines guilty of first-degree murder.

Therefore, the verdict sheet violated the prohibitions against a judge expressing his

opinion about any facts in the case. N.C. Gen. Stat. §§ 15A-1222 and 1232.


      The verdict sheet also was error because it improperly suggested to the jury

that if they convicted Mr. Raines of first-degree murder, it should find him guilty

under both theories. The instruction says that the jury may put ―yes‖ for either

verdict without telling the jurors that answering either of the theories ―no‖ would

be permissible.     This part of the verdict sheet creates a constitutionally

unacceptable risk that the jury might believe that, if it found Mr. Raines guilty of

first-degree murder, it had to find the defendant guilty under both theories. At the

very least, this instruction left the jury with the impression that the judge believed

that they should answer ―yes‖ to both theories.
                                         112

      The trial court should have granted the defense request to use the verdict

sheet that is contained in the pattern instruction. See N.C.P.I. – Crim. 206.14,

Appendix A. This Court has never required that the verdict sheet instruct the jury

that it has to answer both theories. In fact, this Court has considered cases in the

past in which the verdict sheet did not instruct the jury to render a verdict on each

theory. State v. Carroll, 356 N.C. 526, 544, 573 S.E. 2d 899, 912, cert. denied,

539 U.S. 949 (2002).


      In McHone, the North Carolina Court of Appeals found that the failure to

include ―Not Guilty‖ on the verdict sheet, combined with a failure to give a final

mandate discussing the not guilty option, constituted plain error.


                   We recognize that the jury could not have
             genuinely misunderstood its role in passing on the guilt
             or innocence of defendant. Even so, the trial court's
             inadvertent omission tipped the scales of justice in favor
             of conviction and impermissibly suggested that the
             defendant must have been guilty of first degree murder
             on some basis.



      McHone at 299, 620 S.E.2d. at 910. In this case, the flawed verdict sheet

was submitted over objection. Its improper submission entitles Mr. Raines to

either a new trial or a new sentencing hearing where it will be presumed that Mr.

Raines is only guilty based on a felony murder conviction. State v. Millsaps, 356

N.C. 556, 572 S.E. 2d 767 (2002).
                                                    113

        XIII. MR. RAINES WAS DENIED HIS RIGHT TO A FAIR
              AND IMPARTIAL JURY UNDER THE STATE AND
              FEDERAL    CONSTITUTIONS     BECAUSE    A
              PROSPECTIVE JUROR ANNOUNCED IN JURY
              SELECTION THAT WHAT HE HAD READ ABOUT
              THE CASE WAS “PRETTY INCRIMINATING” AND
              THAT COMMENT WAS HEARD BY JURORS WHO
              WERE ACTUALLY SEATED IN THE CASE. THE
              TRIAL COURT COMMITTED PLAIN ERROR BY NOT
              EITHER DECLARING A MISTRIAL OR, IN THE
              ALTERNATIVE, DISMISSING THE PROSPECTIVE
              JURORS WHO HEARD THOSE COMMENTS.
                Assignment of Error No. 28 (Rp. 174)4
Standard of Review


        Whether to declare a mistrial because a prospective juror made a prejudicial

comment in the presence of other prospective jurors during jury selection or, in the

alternative, to dismiss prospective jurors who heard that comment is another

prospective juror make a prejudicial comment, is vested within the discretion of the

trial court. The trial court‘s decision is subject to review for abuse of discretion.

State v. Blackstock, 314 N.C. 232, 243, 333 S.E.2d 245, 252 (1985) (declaration of

mistrial); State v. Trull, 349 N.C. 428, 441-42, 509 S.E.2d 178, 188 (1998), cert.

denied, 528 U.S. 835, 145 L.Ed.2d 80 (1999) (dismissal of prospective juror).




        4
          Defendant has filed Defendant-Appellant‘s Motion to Amend Record on Appeal, asking the Court to
permit defendant to amend Assignment of Error No. 28 to make it clear that defendant is assigning plain error.
                                        114


Discussion


      The trial court committed plain error when it failed to sua sponte declare a

mistrial or, in the alternative, dismiss prospective jurors from consideration who

heard a prospective juror say that what he had read about in the newspaper about

the case was incriminating.    This statement biased the jurors who heard the

statement and who ultimately found Mr. Raines guilty of two counts of first degree

murder and robbery with a dangerous weapon and sentenced him to death. The

juror‘s statement violated Mr. Raines‘ rights under the Sixth, Eighth and

Fourteenth Amendments to the United States Constitution, and Article I, §§ 19, 23,

24 and 27 of the North Carolina Constitution.

      A. Factual Background

      One of the prospective jurors in the case, Joseph Cox, was first questioned

by the Court about whether he knew anything about the case.


                    THE COURT: Prior to coming here have you
             read, heard or been told anything about this matter?

                   MR. COX: I read about it in the paper.

                   THE COURT: In the newspaper?
                   MR. COX: Yes, sir.

                   THE COURT: As a result of that did you form
             any opinion about this matter?
                                          115

                     MR. COX: It sounded pretty incriminating in the
              paper, but I don‘t know that I formed an opinion about it.
              But it sounded incriminating.

(Tpp. 124-25).


      This discussion took place in the presence of four prospective jurors who

ultimately sat on the petit jury that convicted Mr. Raines of two counts of first

degree murder and robbery and sentenced him to death. Those four jurors were

Lillie Justice, Rebekah McCall, James Quinn and Crystal Lindsay.


      The court asked Mr. Cox one more question about the newspaper article that

he read:


                     THE COURT: Well, you‘ve heard me say before
              what‘s in the paper or on television or on radio or what
              they are talking about down at the barber shop, that‘s not
              in evidence. And I‘ve gone through all those reasons
              why it‘s not. Can you put aside whatever you may have
              read and decide this case based on the evidence that‘s
              presented here in court and the law that I will instruct you
              on at the appropriate time?
                    MR. COX: I think I could.

(Tp. 125).


      Mr. Cox was later excused because of views in opposition to the death

penalty.     (Tp. 127).   None of the prospective jurors who heard Mr. Cox‘s

comments was ever asked anything about Mr. Cox‘s comments.

      B. Legal Analysis
                                           116

      This Court dealt with an almost identical situation in State v. Gregory, 342

N.C. 580, 467 S.E. 2d 28 (1996). In Gregory, a prospective juror informed the

trial court that she had worked with the lawyers who had previously represented

the defendant. Id. at 582, 467 S.E. 2d at 30. The juror said she had learned

confidential information that would be favorable to the State, and the confidential

information might influence her decision. Id. at 582-83, 467 S.E. 2d 30-31. This

conversation occurred in the presence of prospective jurors who ended up deciding

the case. Id. at 582, 467 S.E. 2d at 30.


      This Court found the defendant was denied a fair trial because the exchange

between the court and the prospective juror violated his constitutional right to a fair

trial. This Court noted:


                    The United States Supreme Court has held that the
             Sixth Amendment and the Fourteenth Amendment's Due
             Process Clause require the impartiality of any jury
             impaneled to try a cause. ―In essence, the right to jury
             trial guarantees to the criminally accused a fair trial by a
             panel of impartial, ‗indifferent‘ jurors. The failure to
             accord an accused a fair hearing violates even the
             minimal standards of due process. In re Oliver, 333 U.S.
             257[, 92 L. Ed. 682, 68 S. Ct. 499] (1948); Tumey v.
             Ohio, 273 U.S. 510[, 71 L. Ed. 749, 47 S. Ct. 437]
             (1927). ‗A fair trial in a fair tribunal is a basic
             requirement of due process.‘ In re Murchison, 349 U.S.
             133, 136[, 99 L. Ed. 942, 946, 75 S. Ct. 623] (1955). 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.‘ Co. Litt.
             155b. His verdict must be based upon the evidence
                                        117

             developed at the trial. Cf. Thompson v. City of Louisville,
             362 U.S. 199[, 4 L. Ed. 2d 654, 80 S. Ct. 624] (1960).
             This is true, regardless of the heinousness of the crime
             charged, the apparent guilt of the offender or the station
             in life which he occupies. It was so written into our law
             as early as 1807 by Chief Justice Marshall in 1 Burr's
             Trial 416 (1807). ‗The theory of the law is that a juror
             who has formed an opinion cannot be impartial.‘
             Reynolds v. United States, 98 U.S. 145, 155[, 25 L. Ed.
             244, 246 (1878 )] .‖ Morgan v. Illinois, 504 U.S. 719,
             727, 119 L. Ed. 2d 492, 501, 112 S. Ct. 2222 (1992)
             (quoting Irvin v. Dowd, 366 U.S. 717, 721-22, 6 L. Ed.
             2d 751, 755, 81 S. Ct. 1639 (1961) (footnote omitted)).


Id. at 586-87, 467 S.E. 2d at 32-33.
      When this law was applied to the facts in Gregory, this Court recognized the

conviction and death sentence had to be vacated.


                    This information left the eight jurors who heard the
             conversation [between the juror and the court] free to
             speculate about the nature of the damning information
             that defendant and his attorneys were presumably hiding
             from their view. If the jury saw any gaps in the evidence,
             the colloquy with [the juror] invited them to fill in the
             gaps on the assumption that the missing information was
             favorable to the State. Because the dialogue between the
             court and [the juror] had the potential to lead jurors to
             rely on assumptions about evidence not presented at trial,
             we cannot be satisfied that the verdict was based solely
             upon the evidence developed at the trial. The dialogue
             was likely to cause the jurors to form an opinion before
             they heard any evidence at trial, and, as quoted above, a
             juror who has formed an opinion cannot be impartial.


      Id. at 587, 467 S.E. 2d at 33.
                                          118

      Those exact concerns are present in this case. The four jurors who heard the

conversation between Cox and the court were free to speculate about the nature of

the incriminating article read by him. The dialogue was also likely to cause the

jurors to form an opinion before they heard any evidence at trial, and thus prevent

them from being impartial.


      In Gregory, this Court found the conversation between the juror and the

court to be reversible error even though the defendant never objected to the

conversation or moved for a mistrial. Id. at 589, 467 S.E. 2d at 34. The Court said

it constituted plain error because it denied the defendant a fair trial. Id.


      The fact that the trial court told Mr. Cox that what he might have read about

the case is ―not in evidence‖ does not cure the error. The court‘s instructions were

solely addressed to Mr. Cox. Also, in Gregory, the trial court told the prospective

jurors who heard the conversation that they were to strike from their mind the

conversation and they were not to consider it. Id. at 583, 467 S.E. 2d at 31. This

Court said that such an instruction was insufficient.         ―The potential for such

knowledge to impact the jury‘s decision is too great, and the result of such impact

too prejudicial to defendant, to hold that the curative instruction prior to the

submission of evidence removed any adverse impression from the minds of the

jurors.‖ Id. at 589, 467 S.E. 2d at 33.
                                        119

      This Court found the juror‘s conversation required a new trial even though

he confessed to killing the victim. Id. at 582, 467 S.E. 2d at 30. The Court noted

that the only defense witness, a psychologist, testified that in his opinion the

defendant did not have the intent to kill the murder victim. Id. at 588, 467 S.E. 2d

at 34. This Court also noted that there was some conflicting evidence about who

had actually shot a victim who survived. Id. at 588-89, 467 S.E. 2d at 34. In this

case, there is no dispute about who killed the victims. As in Gregory, the issue is

the mens rea of the defendant at the time of the offense.          At this trial, a

psychologist testified that Mr. Raines did not deliberate the deaths of Philip and

Pam Holder.    As a result of the comments made by Mr. Cox about reading

incriminating statements in the paper, Mr. Raines was denied a fair trial and his

convictions and sentences must be vacated.
                                        120

      XIV. MR. RAINES WAS DENIED HIS RIGHT TO HAVE A
           FAIR AND IMPARTIAL JURY CONSIDER HIS
           SENTENCE BECAUSE HE WAS DENIED THE
           OPPORTUNITY     TO     ADEQUATELY     AND
           THOROUGHLY VOIR DIRE PROSPECTIVE JURORS
           ABOUT THEIR VIEWS ON CAPITAL PUNISHMENT.
                   Assignment of Error No. 32, Rp. 175
                   Assignment of Error No. 47, Rpp. 177-78
                   Assignment of Error No. 18, Rp. 172
                   Assignment of Error No. 19, Rp. 172
                   Assignment of Error No. 31, Rpp. 174-75
                   Assignment of Error No. 33, Rp. 175
                   Assignment of Error No. 15, R. 171
                   Assignment of Error No. 16, Rp. 172
                   Assignment of Error No. 20, Rp. 172
                   Assignment of Error No. 10, Rp. 170.
Standard of Review


      Regulation of the form of voir dire questions is reviewed on direct appeal for

abuse of discretion. State v. Chapman, 359 N.C. 328, 346, 611 S.E. 2d 794, 810

(2005).

Discussion
      Mr. Raines was denied his right to have a fair and impartial jury consider his

sentence because he was denied the opportunity to adequately and thoroughly voir

dire prospective jurors about their views on capital punishment. The trial court

consistently sustained the State‘s objections to proper questions asked by defense

counsel that would have helped the trial court and defense counsel determine

whether prospective jurors were qualified to serve on a capital sentencing jury.

The court‘s actions violated Mr. Raines‘ rights under the Sixth, Eighth, and
                                         121

Fourteenth Amendments to the United States Constitution, Article I, §§ 19, 24, and

27 of the North Carolina Constitution, and Morgan v. Illinois, 504 U.S. 719, 119 L.

Ed. 2d 492 (1992), and its progeny.


      In jury selection, Mr. Raines‘ counsel attempted to ascertain whether jurors

could consider mitigating circumstances if the case reached a sentencing hearing.


                    MR. RABIL: Now, you‘re also going to hear
             some things about his childhood dealing with his birth up
             until the time he was 12. And those topics are going to
             be things such as poverty, homelessness, child abuse,
             pervasive child abuse in his family, physical, mental, and
             sexual in nature. Would those subjects which may be
             disturbing to some people, can you all consider that type
             of evidence?

                     MR. WALKER: Well, object to that.

                     THE COURT: Sustained.
(Tp. 176).



      The defense told another juror that they intended to present

evidence about child abuse and neglect of a physical, sexual and

mental nature.


                     Q: Now you could consider those – is that correct?

                     MR. WALKER: Well objection that‘s a stake out.

                     THE COURT: Sustained.
(Tp. Johnson 330).
                                         122




      When the defense brought up the subject another time, the trial court cut

them off again.


                   MR. RABIL: If the defense presents evidence to
             you concerning Mr. Raines background or his childhood,
             any difficulties that he had overcome leading up to this,
             would you be able to consider those things?

                     MR. WALKER: Objection to that.

                     THE COURT: Sustained.
(Tp. Johnson 206).


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

States Supreme Court made it clear that if a jury is going to consider life or death

in a capital case, the defense has a right to inquire about jurors‘ views on the death

penalty. ―Any juror who states that he or she will automatically vote for the death

penalty without regard to the mitigating evidence is announcing an intention not to

follow the instructions to consider the mitigating evidence and to decide if it is

sufficient to preclude imposition of the death penalty.‖ Id. at 738, 119 L.Ed.2d. at

508. The seating of even one juror who would automatically vote for the death

penalty for anybody convicted of first degree murder violates the Due Process

Clause of the Fourteenth Amendment. Id. at 729, 119 L.E.2d. at 503.
                                         123

      The Court said that the reason a prospective juror who would automatically

impose the death penalty must be excused from a capital jury is that he ―will fail in

good faith to consider the evidence of aggravating and mitigating circumstances as

the instructions require him to do.‖ Id. at 729, 119 L.E.2d. at 502. In other words,

a juror who is incapable of considering mitigation regardless of the court‘s

instructions is not qualified to sit on a capital jury. Mr. Raines‘ counsel was trying

to ascertain whether these prospective jurors were capable of considering Mr.

Raines‘ background in determining a proper sentence. The Eighth Amendment

requires that such information be considered by a sentencer in mitigation. ―[T]he

Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded

from considering, as a mitigating factor, any aspect of a defendant‘s character or

record and any of the circumstances of the offense that the defendant proffers as a

basis for a sentence less than death.‖ Lockett v. Ohio, 438 U.S. 586, 604, 57 L. Ed.

2d 973 (1978). See Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1 (1982)

(capital sentencer could not be precluded from considering evidence of defendant‘s

turbulent family upbringing in deciding whether to impose death sentence).


      The defense and the trial court could not adequately determine whether

jurors were capable of considering mitigation because the defense was not able to

ask the jurors whether they could consider Mr. Raines‘ background.
                                         124

                    Were voir dire not available to lay bare the
             foundation of petitioner's challenge for cause against
             those prospective jurors who would always impose death
             following conviction, his right not to be tried by such
             jurors would be rendered as nugatory and meaningless as
             the State's right, in the absence of questioning, to strike
             those who would never do so.


Morgan at 733-34, 119 L.E.2d. at 506. 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, 126 L.E.2d. 341 (1993).


      The defense was allowed to inquire whether prospective jurors could

consider a life sentence for first-degree murder. The defense‘s ability to ask these

questions was meaningless, however, because they were not allowed to properly

ascertain prospective juror‘s ability to consider mitigation. In Morgan, the Court

rejected Illinois‘ contention that the voir dire was adequate because the jurors said

they could follow the law and fair and impartial.


                    As to general questions of fairness and
             impartiality, such jurors could in all truth and candor
             respond affirmatively, personally confident that such
             dogmatic views are fair and impartial, while leaving the
             specific concern unprobed. More importantly, however,
             the belief that death should be imposed ipso facto upon
                                        125

             conviction of a capital offense reflects directly on that
             individual's inability to follow the law. It may be that a
             juror could, in good conscience, swear to uphold the law
             and yet be unaware that maintaining such dogmatic
             beliefs about the death penalty would prevent him or her
             from doing so. A defendant on trial for his life must be
             permitted on voir dire to ascertain whether his
             prospective jurors function under such misconception.



Morgan at 735-36, 119 L.E.2d. at 506-07.


      In this case, the jurors might honestly have believed that they can follow the

court‘s instructions about the death penalty, but if they had a strong view that a

defendant‘s background should not be considered in determining sentence, they

were not qualified to sit on the jury. ―The risk that such jurors may have been

empanelled in this case and infected petitioner‘s capital sentencing is unacceptable

in light of the ease with which that risk could have been minimized.‖ Id. at 736,

119 L.E.2d. at 507.

      The questions the defense attempted to ask were not stake out questions. 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
                                        126

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.‖

      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 (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 (2002). Neither type of

question was asked here. Counsel simply attempted to ask the prospective jurors

whether they could consider Mr. Raines‘ background in deliberating his sentence.

In other words, counsel wanted to find out if they could follow the court‘s

instructions and the dictates of the Eighth and Fourteenth Amendments and N.C.

Gen. Stat. 15A-2000.

      This Court upheld limitations on the defense counsel‘s questioning of jurors

about considering mitigation in light of potential aggravating circumstances in

State v. Richmond, 347 N.C. 412, 424-26, 495 S.E. 2d 677, 683-84 (1998), cert.

denied, 525 U.S. 843, 142 L.E.2d. 88 (1998). The proffered question in that case,

however, was fundamentally different from the questions in the present case. In

Richmond, the defense wanted to inquire whether the jurors could still consider

mitigating circumstances if they knew the defendant had previously been convicted

of first-degree murder. Richmond at 424, 495 S.E.2d. at 683. In other words, the
                                        127

defense wanted to ask the jury if they would consider mitigation in light of certain

aggravating circumstances. In this case, the jurors were not being asked to weigh

certain aggravating circumstances against mitigating circumstances.        Defense

counsel simply attempted to inquire whether the jurors would ever be able to

consider a defendant‘s background in deciding the appropriate sentence.

      The three questions listed above were not the only times that the court

limited Mr. Raines‘ rights under Morgan. The Court also interfered with the

defense‘s ability to determine if the jurors would be able to consider mitigation

related to Mr. Raines‘ being classified as behaviorally and emotionally

handicapped.


                  MR. RABIL: [Y]ou‘re going to hear some
            evidence about what is being termed a behavioral – a
            BEH child, behaviorally and emotionally handicapped.
            And I want to ask if anyone on the jury has had
            experience with a child or someone in your family who
            was classified as behaviorally or emotionally
            handicapped. I want to ask you if that would be a
            problem for any of you to consider that kind of evidence.
                   Yes, Ma‘am?

                  MR. WALKER:           I‘m going to object to that
            question.

                  THE COURT: Sustained to the last part. I‘ll let
            him ask if they‘ve had anybody in their family, but we‘re
            not going to talk about considering it. That‘s staking
            them out.
                                        128

(Tp. Johnson 210).     Evidence that a defendant is behaviorally or mentally

handicapped is mitigating evidence that must be considered by a capital sentencer.

See Tennard v. Dretke, 542 U.S. 274, 159 L. Ed. 2d 384 (2004). Under Morgan,

the defense was entitled to ensure that the jurors were capable of considering

circumstances related to those conditions.


      The defense was also prohibited from exploring with a juror whether the

defendant‘s use of cocaine would prevent him from giving the defendant a fair

sentencing hearing. Juror Rogers had expressed some concerns about people who

commit crimes after using drugs.


                 MR. ROGERS:           I feel he should be held
            accountable for his actions even though he took drugs
            and was on drugs at the time.
                   MR. RABIL: All right. Well, there are a lot of
            circumstances – excuse me—that we are going to have to
            present to you. And we are not going to present a
            defense where we are going to tell you that cocaine made
            him do anything. All right? But the mere—but there
            will be evidence that tends to show that our client was on
            cocaine before and after this.
                   Would the mere fact of the use of cocaine or
            ephedrine be such—you know, I appreciate your position
            on those – on that issue and certainly you are entitled to
            that – would that prevent you, though, from considering
            all of the other evidence in mitigation and prevent you
            from considering both punishments, the mere fact that he
            had been taking cocaine on that occasion and many other
            prior occasions?

                   MR. ROGERS: I don‘t—
                                         129

                   MR. WALKER: Objection to that question.
                   THE COURT: Sustained.

(Tp. 172). In State v. McKoy, 323 N.C. 1, 372 S.E.2d. 12 (1988), vacated on other

grounds, McKoy v. North Carolina, 489 U.S. 1010, 103 L.Ed.2d. 180 (1990), this

Court ruled that it was not a stake out question for the prosecution to ask jurors ―If

it is shown to you from the evidence and beyond a reasonable doubt that defendant

was intoxicated at the time of the alleged shooting, would this cause you to have

sympathy for him and allow that sympathy to [a]ffect your verdict?‖ This Court

noted that the question ―did not tend to ‗stake out‘ the jurors as to their potential

verdict or how they would vote under a given state of facts‖ and the question did

not fish for answers to legal questions before the jurors were instructed by the

court. Id. at 14-15, 372 S.E.2d. at 19. Likewise, the question about drugs in this

case neither stakes out how the juror would vote in a certain situation nor fishes for

the juror‘s legal conclusion before instructions from the judge.


      The defense was also prohibited from questioning jurors about whether the

defendant‘s past criminal history would prevent them from giving Mr. Raines a fair

sentencing hearing.


                    MR. RABIL: You are going to hear that he broke
             into a house and stole guns and sold them for that, and
             you‘re going to hear that he was convicted of four counts
             of larceny from a person, that he was put on probation,
             that he violated that, that he did time for that, that while
             he was doing time he walked off a work crew and was
                                          130

             charged with escape for being away from that group for
             three or four hours, and he did another nine to eleven
             months for that. And after that he was—had done all of
             this time he was released and came back to live with
             Philip Holder and Pam Holder, six months before this
             happened.

                   Now, would the mere fact of those – of that
             criminal history prevent you from considering any other
             evidence in the case?

                    MR. WALKER: Objection.

                    THE COURT: Sustained.
(Tpp. 177-78).


      These questions are different from the questions the defense attempted to ask

in Richmond. As described earlier, in Richmond, the defendant wanted to ask

jurors whether they would consider mitigating circumstances in light of a particular

aggravating circumstance. Neither Mr. Raines‘ drug use nor any of his previous

criminal convictions qualify as an aggravating circumstance under N.C. Gen. Stat.

§ 15A-2000(e). Therefore, the defense was not attempting to ask jurors how they

would compare mitigating circumstances versus aggravating circumstances as the

defense was trying to do in Richmond. Instead, they were simply trying to ensure

that jurors would follow the law and consider mitigation.


      The court also prevented the defense from asking questions that clearly were

not stake out questions but would have given significant insight into prospective

jurors‘ ability to consider mitigation.
                                           131

                  MR. RABIL: Would you say you spent very much
            time with [your] children growing up or not?

                   MR. WALKER: Objection to that?

                  THE COURT: Sustained as to how much time he
            spent with his children.
                   MR. RABIL: Do you think it is important for a
            parent to spend much time with their children growing up
            just in general?

                   MR. WALKER: Objection.

                   THE COURT: Sustained.



(Tp. Johnson 199). Jurors who decide a capital defendant‘s fate must be capable of

considering mitigation related to a defendant‘s background and family life. These

questions would have given insight into whether the individual jurors were capable

of considering and evaluating information about the defendant‘s abusive and

chaotic background.


      In addition to prohibiting the defense from asking questions about a jurors‘

ability to consider mitigating circumstances, the defense was also prohibited from

asking questions that could have determined whether jurors were likely to

automatically support the death penalty.


                   MR. KLINKOSUM: [I]f you convicted [him of]
            first degree murder where he had premeditated and
            deliberated, you found that, would you favor the death
            penalty over life without parole in the penalty phase?
                                       132

                     MS. CUSHING: I would—
                     MR. WALKER: Well, I‘m going to object to that.

                    THE COURT: As phrased I‘m going to sustain
             that objection.

(Tp. 38).    Individuals who would automatically favor the death penalty for

anybody convicted of premeditated and deliberate murder are not qualified to serve

as a juror in a capital case. Morgan mandates that the defense be able to determine

if jurors have such a predilection.


      The defense was also prohibited from asking questions that would have

given them insight as to whether a juror would be able to truly consider life

imprisonment without parole. The defense attempted to ask a juror who said that

he supported the death penalty in some circumstances the following question:


             MR. RABIL: And how would you characterize your
             support for the death penalty?

             MR. WALKER: Objection.

             THE COURT: Sustained.

(Tp. Johnson 180).



      This question is clearly not a stake out question because it does not require

the juror to say when he would impose death or life without parole. The Court in

Morgan pointed out that questions about whether a juror would follow the law are

often insufficient to discover whether they could truly follow the court‘s
                                        133

instructions with regard to mitigation. Id. at 735-36, 119 L.E.2d. at 506-07. By

asking an open-ended question about the jurors‘ support for the death penalty,

counsel was attempting to learn information that would clarify whether the juror

was capable of considering mitigation and following the law at a sentencing

hearing.


      Mr. Raines‘ did not exhaust his peremptory challenges in this case.

Normally, a defendant cannot show prejudice for not being able to ask certain

questions on voir dire if he has not exhausted his peremptory challenges. See State

v. Neal, 346 N.C. 608, 618, 487 S.E. 2d 734, 740 (1997), cert. denied, 522 U.S.

1125, 140 L.E.2d. 131 (1998). In this case, however, the trial court‘s limitations

on defense counsel‘s questions were pervasive throughout jury selection. As a

result of the court‘s limitations, it was impossible for counsel to determine whether

or not jurors‘ views on the death penalty and mitigation prevented them from being

fair. Under these circumstances, it would be unreasonable to require the defense to

exercise all of their peremptory challenges because counsel were unable to gain

enough information to determine which jurors should be removed because of their

views on the death penalty. Since the defense could not adequately determine

whether there were jurors who would refuse to consider mitigation on the panel,

there is an unacceptable risk that a juror or jurors who could not consider

mitigation deliberated and imposed Mr. Raines‘ sentence. ―If even one such juror
                                        134

is empanelled and the death sentence is imposed, the State is disentitled to execute

the sentence.‖ Morgan, at 729, 119 L.E.2d. at 503.


      XV. THE TRIAL COURT ERRED BY TRYING DEFENDANT
          AND ENTERING JUDGMENT AGAINST DEFENDANT
          FOR FIRST-DEGREE MURDER, SINCE THE “SHORT-
          FORM” INDICTMENTS FOR MURDER ALLEGED
          ONLY THE ELEMENTS OF SECOND-DEGREE
          MURDER.
                   Assignment of Error No. 102 (Rp. 190)
                   Assignment of Error No. 103 (Rpp. 190-91)
                   Assignment of Error No. 104 (Rp. 191)
                   Assignment of Error No. 105 (Rp. 191)

Standard of Review


      The adequacy of an indictment is a question of law, subject to de novo

review by this Court. State v. Wallace, 351 N.C. 481, 528 S.E.2d 326, cert.

denied, 531 U.S. 1018, 148 L.Ed.2d 498 (2000).


Discussion


      Defendant presents this issue as a preservation issue to preserve his rights to

raise the issue in possible future proceedings in federal court. Defendant was tried

for two counts of first-degree murder on short-form indictments. See generally

N.C. Gen. Stat. § 15-144. The indictments alleged only the elements of second-

degree murder and capital aggravating circumstances.         It did not allege the

elements of first-degree murder.     However, the trial court tried and entered
                                         135

judgments against defendant for two counts of first-degree murder. Defendant

contends that since the indictments did not allege the elements of first-degree

murder, the trial court erred by trying and entering judgment against defendant for

first-degree murder. Defendant understands that this Court has ruled against his

position. State v. Wallace, supra.


      Defendant contends that the trial court erred for the following reasons: the

indictments did not give the trial court subject matter jurisdiction concerning first-

degree murder; as a matter of North Carolina and federal due process, the

indictments did not give the trial court authority to punish defendant for first-

degree murder; the trial court violated the North Carolina and federal Due Process

Clauses because the indictments did not show whether the grand jury voted to

indict defendant for first-degree murder; the trial court violated the North Carolina

and federal Due Process Clauses because it is impossible to determine whether the

grand jury decided to indict defendant for first-degree murder or second-degree

murder; the trial court violated the North Carolina and federal Due Process Clauses

because due process requires the state to allege in a pretrial charging document all

elements of every charge for which the state will try a defendant; the trial court

violated defendant‘s right to equal protection under the North Carolina

Constitution and of the Fourteenth Amendment to the United States Constitution

because murder is one of only three categories of offenses for which short-form

indictments may be used under North Carolina law; and that under Article I, § 22
                                        136

and Article IV, § 13(2) of the North Carolina Constitution, the General Assembly

lacks the power to authorize the use of short-form indictments. See generally

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

Vermont, 168 U.S. 262, 42 L.Ed. 461 (1897); Cole v. Arkansas, 333 U.S. 196, 92

L.Ed. 644 (1948).


      XVI. THE TRIAL COURT COMMITTED PLAIN ERROR IN
           SUBMITTING   THE   “ESPECIALLY   HEINOUS,
           ATROCIOUS, OR CRUEL” AGGRAVATING FACTOR
           TO THE JURY BECAUSE POST-RING, VAGUENESS
           AND OVERBREADTH CANNOT BE CURED BY
           APPELLATE NARROWING.
                    Assignment of Error No. 89 (Rpp. 187-88)
Standard of Review


      If a defendant in a criminal case claims that the trial court gave an erroneous

jury instruction, but the defendant did not object to the instruction at trial, this

Court conducts plain error review. State v. Odom, 307 N.C. 655, 300 S.E.2d 375

(1983).


Discussion


      The trial court committed plain error by submitting the aggravating

circumstance under N.C. Gen. Stat. §15A-2000(e)(9) -- that the killings were

―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, §§ 18, 19, and 27 of the North
                                         137

Carolina Constitution. Since this factor is vague and overbroad on its face, and it

can no longer be cured by appellate narrowing. Mr. Raines knows that this Court

has rejected this argument. See State v. Duke, 360 N.C. 110, 136-37, 623 S.E.2d

11, 28-29 (2005), cert. denied, ___ U.S. ___, 166 L.Ed.2d 96 (2006). Mr. Raines

presents this argument for preservation purposes.


      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, 100 L.Ed.2d 372, 382 (1988). Accord Godfrey v. Georgia, 446 U.S.

420, 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….‖ State v. Martin, 303 N.C. 246, 254, 278 S.E.2d 214,

220, cert. denied, 454 U.S. 933, 70 L.Ed.2d 240 (1981).
                                        138

      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, 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, 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, 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. Ruse, 319 N.C. 110,
             146, 353 S.E.2d 352, 373 (1987); or
      (9)    the killing was ―committed in a fashion beyond what was necessary to
             effectuate the victim‘s death,‖ State v. Golphin, 352 N.C. 364, 480,
             533 S.E.2d 168, 242 (2000), cert. denied, 532 U.S. 931, 149 L.Ed.2d
             305 (2001).
                                         139

      The constitutional infirmity lies in the fact that the pattern jury instruction

does not incorporate all of the narrowing factors necessary to cure HAC‘s inherent

vagueness and thus fails to provide the necessary guidance to the only body

constitutionally empowered to engage in fact finding. The pattern instruction,

given virtually verbatim in this case, simply states:


             Was the murder of Philip Holder especially heinous,
             atrocious, or cruel?
                    Members of the jury, 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.

                    However, 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, and cruel. And not every murder is especially
             so. For this murder to have been especially heinous,
             atrocious, and 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.

(Trial Tpp. 1674-75, Rpp. 91-92)
      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, 112 L.Ed.2d 1, 5 (1990)

(Marshall, J., concurring). The remainder of the instruction, though a correct

statement of law, is woefully incomplete.
                                        140

      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 an aggravating factor be by the jury. Ring

v. Arizona, 536 U.S. 584, 153 L.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,

__ U.S. __, 160 L.Ed.2d 881, 891 n.6, 13 n.6 (2005).


      As the HAC aggravating factor, as submitted to this jury, was vague and

overbroad, the trial court thus erred in denying Mr. Duke‘s motion.


      XVII. THE TRIAL COURT COMMITTED PLAIN ERROR BY
            INSTRUCTING THE JURY TO ANSWER “YES” FOR
            ISSUE THREE EVEN IF THE JURY WERE TO FIND
            THAT THE WEIGHT OF THE MITIGATING
            CIRCUMSTANCES EQUALED THE WEIGHT OF THE
            AGGRAVATING CIRCUMSTANCES.
                   Assignment of Error No. 97 (Rp. 189)
Standard of Review


      If a defendant in a criminal case claims that the trial court gave an erroneous

jury instruction, but the defendant did not object to the instruction at trial, this
                                        141

Court conducts plain error review. State v. Odom, 307 N.C. 655, 300 S.E.2d 375

(1983).


Discussion


      The jury instructions (taken verbatim from the pattern jury instructions) and

the Issues and Recommendation as to Punishment form directed the jury to answer

―Yes‖ to Issue Three if either (1) the jury finds beyond a reasonable doubt that the

aggravating circumstances outweigh the mitigating circumstances, and (2) if the

aggravating and mitigating circumstances are of equal weight. (Trial Tpp. 1670,

1703; Rpp. 87, 120) These instructions violated North Carolina law and the Eighth

Amendment and Due Process Clause of the Fourteenth Amendment to the United

States Constitution. Since defense counsel did not object to these instructions, Mr.

Raines asserts plain error.


      Mr. Raines knows that both the Supreme Court of the United States and this

Court have rejected this argument. Kansas v. Marsh, ___ U.S. ___, 165 L.Ed.2d

429 (2006); State v. Duke, 360 N.C. 110, 140, 623 S.E.2d 11, 30-31 (2005), cert.

denied, ___ U.S. ___, 166 L.Ed.2d 96 (2006). Mr. Raines submits this argument

for preservation purposes.
                                        142

      XVIII. THE TRIAL COURT COMMITTED PLAIN ERROR
             UNDER     EIGHTH      AND    FOURTEENTH
             AMENDMENTS BY ALLOWING THE JURY TO
             REFUSE TO GIVE EFFECT TO MITIGATING
             EVIDENCE IF THE JURY DEEMED THE EVIDENCE
             NOT TO HAVE MITIGATING VALUE.
                   Assignment of Error No. 90 (Rp. 188)
Standard of Review


      If a defendant in a criminal case claims that the trial court gave an erroneous

jury instruction, but the defendant did not object to the instruction at trial, this

Court conducts plain error review. State v. Odom, 307 N.C. 655, 300 S.E.2d 375

(1983).


Discussion


      The trial court instructed the jury on three statutory mitigating factors and 35

enumerated nonstatutory mitigating factors. For all 35 nonstatutory factors, the

trial court instructed the jury that each juror could ignore nonstatutory mitigating

evidence that was factually established if the juror deemed the evidence not to have

mitigating value. Defendant submits that the trial court's instructions violated the

Eighth and Fourteenth Amendments to the United States Constitution by

permitting jurors to ignore mitigating evidence. Eddings v. Oklahoma, 455 U.S.

104, 71 L.Ed.2d 1 (1982); Penry v. Lynaugh, 492 U.S. 302, 319, 106 L.Ed.2d 256,

278 (1992). The instruction also violated the Eighth and Fourteenth Amendments

by denying defendant the constitutionally required, individual consideration of his
                                         143

background and character and of the crime. Lockett v. Ohio, 438 U.S. 586, 605, 57

L.Ed.2d 973 (1978).


      Defendant knows that the Court has rejected this argument in past cases.

See, e.g., State v. Payne, 337 N.C. 505, 533, 448 S.E.2d 93, 109-110 (1994), cert.

denied, 514 U.S. 1038, 131 L.Ed.2d 292 (1995); State v. Fullwood, 323 N.C. 371,

395-97, 373 S.E.2d 518, 533 (1988), sentence vacated on other grounds, 494 U.S.

1022, 108 L.Ed.2d 602 (1990). Defendant raises this issue here as plain error to

ask the Court to reconsider its prior decisions on the issue and to preserve the issue

for future review.


      XIX. THE TRIAL COURT'S CAPITAL SENTENCING JURY
           INSTRUCTIONS, WHICH DEFINED DEFENDANT'S
           BURDEN OF PERSUASION TO PROVE MITIGATING
           CIRCUMSTANCES AS EVIDENCE THAT "SATISFIES"
           EACH JUROR, WERE PLAIN ERROR THAT
           VIOLATED DUE PROCESS AND THE EIGHTH AND
           FOURTEENTH AMENDMENTS BECAUSE THAT
           DEFINITION DID NOT ADEQUATELY GUIDE THE
           JURY'S DISCRETION ABOUT THE REQUISITE
           DEGREE OF PROOF.
                     Assignment of Error No. 91 (Rp. 188)
Standard of Review


      If a defendant in a criminal case claims that the trial court gave an erroneous

jury instruction, but the defendant did not object to the instruction at trial, this

Court conducts plain error review. State v. Odom, 307 N.C. 655, 300 S.E.2d 375

(1983).
                                         144

Discussion


      The trial court instructed the jury that defendant had the burden to prove

mitigating circumstances to the satisfaction of the jurors. Defendant submits that

this standard of proof violates the Eighth Amendment's requirement of guided

discretion in a capital sentencing hearing. Defendant acknowledges that the Court

ruled in State v. Payne, 337 N.C. 505, 448 S.E.2d 93 (1994), cert. denied, 514 U.S.

1038, 131 L.Ed.2d 292 (1995), that the use of the term "satisfy" to define a

defendant's burden of persuasion for mitigating circumstances was not plain error.

However, defendant respectfully asks the court to revisit this issue in this case.

Additionally, defendant raises this issue here as plain error to preserve it for future

review.


      XX. THE TRIAL COURT COMMITTED PLAIN ERROR BY
          INSTRUCTING THE JURORS FOR ISSUES THREE
          AND FOUR THAT EACH JUROR “MAY” CONSIDER
          MITIGATING CIRCUMSTANCES FOUND IN ISSUE
          TWO.
                    Assignment of Error No. 98 (Rp. 189)
Standard of Review


      If a defendant in a criminal case claims that the trial court gave an erroneous

jury instruction, but the defendant did not object to the instruction at trial, this

Court conducts plain error review. State v. Odom, 307 N.C. 655, 300 S.E.2d 375

(1983).
                                          145

Discussion


      In its jury instructions for Issues Three and Four, the trial court stated that

each juror ―may‖ consider mitigating circumstances found in Issue Two.

Defendant submits that the correct instruction under the Eighth Amendment is that

each juror must consider mitigating circumstances found in Issue Two. Defendant

knows that this Court has ruled against defendant‘s position in State v. Skipper,

337 N.C. 1, 446 S.E.2d 252 (1994), cert. denied, 513 U.S. 1134, 130 L.Ed.2d 895

(1995); and State v. Lee, 335 N.C. 244, 439 S.E.2d 547, cert. denied, 513 U.S. 891,

130 L.Ed.2d 162 (1994). Defendant respectfully submits that the Court‘s decisions

on this issue in those cases were incorrect and that the Court should reconsider this

issue. Defendant and undersigned counsel still do not understand how ―may‖

means ―must,‖ as this Court ruled in Skipper and Lee. Ordinary English word

usage shows that the Court ―might‖ (i.e., ―must‖) be wrong about this issue. In any

event, defendant raises this issue as plain error at least for preservation purposes.


      XXI. THE TRIAL COURT ERRED BY REFUSING TO
           DISCLOSE TO THE DEFENSE ANY INFORMATION IN
           DEPUTY JERRY RICE’S PERSONNEL FILE AFTER
           THE COURT EXAMINED THE FILE UNDER SEAL.
                    Assignment of Error No. 46 (Rp. 177)
Standard of Review


      When a trial court examines sealed material in camera under State v. Hardy,

293 N.C. 105, 235 S.E.22d 828 (1977), and then determines that a defendant does
                                          146

not have a right to disclosure of that material under either the United States

Constitution or North Carolina discovery law, this court conducts its own de novo

review of the material to determine whether the defendant has a right to disclosure

of the material. State v. Hardy, supra.


Discussion


      Mr. Raines asks this Court to review the personnel file of Lt. Jerry Rice of

the Henderson County Sheriff‘s Department to determine whether that file contains

material to which defendant had a constitutional or statutory right to pretrial

disclosure. That file has been sealed by the trial court for review by this Court.

Undersigned counsel will ask the trial court to transmit the sealed file to this Court.


      Here are the relevant facts: On July 11, 2005, before the trial in this case, the

trial court held an evidentiary hearing on defendant‘s motion to dismiss all charges.

As the testimony during that hearing showed, officers in the Henderson County

Sheriff‘s Department learned that a man named Heath Rice was with Mr. Raines in

the Wal-Mart in Asheville when Mr. Raines used Pam Holder‘s credit card to buy

merchandise on the night of December 10-11, 2002, shortly before Philip and Pam

Holder were killed.      Lt. Jerry Rice and Sgt. Randy Stepp of the Sheriff‘s

Department conducted a tape recorded interview of Heath Rice on December 13,

2002. The interview was then transcribed by Ms. Linda Gail Davis of the Sheriff‘s

Department on a computer. However, the tape and transcript of the interview were
                                        147

lost, and the computer on which Ms. Davis had made the transcript was destroyed.

As a result, neither the tape recording nor the transcript of the interview were

disclosed to defense counsel. The Sheriff‘s Department took disciplinary action

against Sgt. Stepp because of his misconduct in connection with the disappearance

of the tape and transcript. See Motion for Sanctions for Violation of Statutory

Discovery Law and Brady v. Maryland, Rpp. 40-50.


      Defendant‘s motion to dismiss was based on defense counsel‘s concern that

Heath Rice might have made statements to the officers during his interview that

were relevant to Mr. Raines‘ state of mind on the night of the crimes. Although

defense counsel had consistently acknowledged that Mr. Raines killed the Holders,

counsel also maintained that Mr. Raines did not commit the murders with the

requisite mens rea for premeditated and deliberate first-degree murder. Defense

counsel was concerned that Heath Rice‘s statements might have been partially

exculpatory – that they might have shown that Mr. Raines‘ use of crack with Heath

Rice that night affected Mr. Raines later that night so as to negate one of the mens

rea elements of premeditated and deliberate first-degree murder when he killed

Philip and Pam Holder. The loss of the tape and transcript prevented defense

counsel from obtaining the most reliable source of evidence about what Heath Rice

said to the officers during the December 13 interview.


      In light of the disappearance of the tape and transcript and of the destruction

of the computer, defense counsel was concerned that Lt. Rice or Sgt. Stepp might
                                         148

have intentionally destroyed the tape and transcript to conceal potentially

exculpatory statements made by Heath Rice during the interview. To investigate

the possibility of intentional destruction, defense counsel sought to review the

personnel files of Lt. Rice and Sgt. Stepp. (July 11, 2005 Hearing Tpp. 358-63)

The trial decided to review those files in camera pursuant to State v. Hardy, 293

N.C. 105, 293 S.E.22d 828 (1977), and to order them sealed for possible review by

this Court. (July 11, 2005 Hearing Tp. 162-63) On August 24, 2005, after its in

camera examination of the files, the trial court disclosed material from Sgt. Stepp‘s

file to defense counsel pursuant to Hardy. However, the trial court ruled that no

material from Lt. Rice‘s file was subject to disclosure under Hardy and, therefore,

the trial court decided not to disclose Lt. Rice‘s file to defense counsel. (Tpp. 364-

66)


      Subsequently, the trial court concluded that the loss of the tape and transcript

was not intentional and that the computer was destroyed because it was obsolete.

Accordingly, the trial court denied defendant‘s motion to dismiss. See Order

Denying Motion to Dismiss, Rpp. 54-55.


      Mr. Raines asks this Court to conduct its own review of Lt. Rice‘s sealed

personnel file to determine whether it contains material that defense counsel had a

right to examine under Hardy, under Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d

215 (1963), or under North Carolina‘s discovery statutes. Specifically, Mr. Raines

asks this Court to review Lt. Rice‘s file to determine whether any material in the
                                        149

file shows that Heath Rice made material, exculpatory statements to Lt. Rice and

Sgt. Stepp about Mr. Raines‘ state of mind on the night of the killings, whether any

material in the file shows that the tape and transcript of Heath Rice‘s interview was

intentionally destroyed, and whether the failure of the State to disclose any such

exculpatory statements requires the Court to reverse Mr. Raines‘ convictions and

to order a new trial and sentencing hearing.


      XXII.    THE TRIAL COURT ERRED BY SENTENCING
               DEFENDANT TO DEATH BECAUSE THE DEATH
               PENALTY IS INHERENTLY CRUEL AND UNUSUAL;
               THE NORTH CAROLINA CAPITAL SENTENCING
               SCHEME IS UNCONSTITUTIONALLY VAGUE AND
               OVERBROAD; AND THE DEATH SENTENCE IN
               THIS CASE WAS NOT SUPPORTED BY THE
               EVIDENCE, WAS DISPROPORTIONATE, AND WAS
               IMPOSED UNDER THE ARBITRARY INFLUENCE
               OF   PASSION,   PREJUDICE,  AND   OTHER
               ARBITRARY FACTORS.
                   Assignment of Error No. 99 (Rp. 189-90)
                   Assignment of Error No. 100 (Rp. 190)
                   Assignment of Error No. 100 (Rp. 190)
                   Assignment of Error No. 100 (Rp. 190)


Standard of Review


      Whether a trial court erred in imposing a death sentence is a question of law,

subject to de novo review. N.C. Gen. Stat. §15A-2000(d)(2).
                                        150


Discussion


      Defendant contends that the death penalty violates the Eighth and Fourteenth

Amendments to the United States Constitution and Art. I, §§ 19, 23, and 27 of the

North Carolina Constitution because the death penalty is inherently cruel and

unusual and the North Carolina capital sentencing scheme, N.C. Gen. Stat. § 15A-

2000, is vague and overbroad. The statute also permits juries to make excessively

subjective sentencing determinations.      The statute is applied arbitrarily and

pursuant to a pattern of discrimination on the basis of race and sex of defendants

and victims and on the basis of defendants' poverty. In addition, the trial court

erred by denying defendant‘s motion to bar imposition of the death penalty. The

death sentences also violate Article IV, § 2 of the United States Constitution as

they violate the International Covenant on Civil and Political Rights and customary

international law. Moreover, the death penalty is disproportionate in this case.


                                    CONCLUSION
      For the reasons set forth above, Mr. Raines respectfully contends that this

Court should reverse his convictions and death sentences and order a new trial and

a new capital sentencing hearing.
                                       151

      Respectfully submitted this the 17th day of February, 2007.


                                     (Electronic Submission)
                                     Benjamin Dowling-Sendor
                                     Assistant Appellate Defender
                                     ben.dowling.sendor@nccourts.org

                                     Staples Hughes
                                     Appellate Defender
                                     Office of the Appellate Defender
                                     123 West Main Street, Suite 500
                                     Durham, North Carolina 27701
                                     (919) 560-3334

                                     (Electronic Submission)
                                     Jonathan E. Broun
                                     Center for Death Penalty Litigation
                                     201 West Main Street, Suite 301
                                     Durham, North Carolina 27701
                                     (919) 956-9545
                                     Jonathan@cdpl.org

                                     ATTORNEYS FOR DEFENDANT

                        CERTIFICATE OF SERVICE
      I further hereby certify that a copy of the above and foregoing Defendant-
Appellant‘s Brief has been duly served upon Ms. Joan M. Cunningham, Assistant
Attorney General, North Carolina Department of Justice, Post Office Box 629,
Raleigh, North Carolina 27602-0629, by first-class mail, postage prepaid.

      This the 17th day of February, 2007.


                                     (Electronic Submission)
                                     Benjamin Dowling-Sendor
                                     Assistant Appellate Defender

				
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