In this Wake County case, defendant appealed his convictions for two counts of first-degree murder and the sentence of death, arguing a list of errors related to admission of evidence, denial of his motions to dismiss, and imposition of the death penalty. In a substantial and detailed opinion, the Supreme Court majority found no prejudicial error, affirming the death sentence.

In December of 2016, defendant set up a meeting with a woman, the eventual female victim, for sexual services at a Raleigh hotel. Defendant and an accomplice arrived at the hotel and the woman provided her room number. The two men went to the room, passing the man serving as a protector for the woman in the hallway. After a few minutes the protector, who was the eventual male victim, began banging on the door of the room. Defendant’s accomplice left the room and after an exchange in the hallway shot the protector several times. Hearing the shots, defendant ran out of the room, turned, and fired several shots back into the room, hitting the woman. By the time police arrived, both victims were dead from gunshot wounds; an autopsy determined the female victim was twelve weeks pregnant. Defendant and his accomplice fled the hotel but were subsequently arrested. During the guilt-innocence phase of trial, the State called two women, Bessie and Rachel, who had been hired for sexual services by defendant, and they offered testimony about his violent interactions with them, as he raped and robbed them in budget hotels. The State also called a woman, Kara, who had first been hired for sexual services by defendant, and who was then forced into prostitution by defendant and assaulted at gunpoint by him. Additional witnesses testified to defendant’s conduct during the sentencing phase of the trial. Defendant was convicted, sentenced to death, and appealed directly to the Supreme Court under G.S. 7A-27(a).

The Supreme Court took up defendant’s arguments regarding errors in both the guilt-innocence phase and the sentencing phase of trial (the numbering/lettering below corresponds to the majority opinion’s organization).

(A) Rule 404(b) Evidence (Bessie and Rachel) – Defendant argued it was error to admit evidence related to his interactions with Bessie and Rachel in the months before the murders. In separate incidents, defendant and an accomplice contacted each woman for sexual services, then met each woman at a budget Raleigh hotel, tied them up, raped them, and robbed them. (1) Defendant argued the evidence of the prior acts with the two women did not fall within the proper bounds of Rule 404(b) evidence. The Court disagreed, walking through defendant’s objections to the specific findings of fact and conclusions of law, noting the similarities between the crime at issue and the two incidents and concluding “[t]hese facts are sufficient in both temporal proximity and similarity to demonstrate a common plan or scheme to rape and rob [the female victim] on the night she was murdered.” Slip Op. at 18. (2) The Court then looked to whether the evidence was unfairly prejudicial under Rule 403, determining “this evidence was not unfairly prejudicial, nor did it substantially outweigh the highly probative value, because it was introduced to establish defendant’s common scheme or plan.” Id. at 19-20. (3) Finally, the Court considered the limiting instruction given by the trial court and found no error, noting that defendant actually requested the instructions in question, meaning even if there was error, it would be invited error on defendant’s part.

(B) Evidence of a Prior Assault with a Firearm (Kara) – Defendant next argued that admitting evidence of his assault on Kara was plain error under Rules of Evidence 401 and 403, as defendant failed to object at trial. Defendant met Kara after he hired her for sexual services, but defendant then forced her to engage in prostitution to raise money for him. After defendant continued to force Kara to raise money, she protested, and defendant threatened her by placing his gun in her mouth. (1) After defendant’s motion in limine, the trial court allowed the State “to elicit testimony from Kara [] to identify defendant and/or the weapon he used on the night she was assaulted.” Id. at 22. Kara was not permitted to testify about human trafficking or prostitution offenses. (2) The Court applied plain error review, noting review was not available under Rule 403 as review was not available for issues “within the realm of the trial court’s discretion.” Id. at 26 (quoting State v. Steen, 352 N.C. 227 (2000)). However, the Rule 401 relevancy issue could be considered, and the Court concluded that “testimony about defendant’s possession of, preference for, and prior assault with a firearm was relevant as it made the fact that defendant possessed and used the weapon to kill [the female victim] more probable.” Id. at 27-28. The Court also noted that even if the evidence was not relevant, defendant could not show the jury probably would have reached a different result if not for the evidence.

(C) Evidence of the Abusive Backgrounds of Prior Women Victimized by Defendant – The Court considered defendant’s arguments against testimony in both phases of the trial. (1) In the guilt-innocence phase, defendant challenged testimony from the female victim’s sister about her childhood, arguing it was improper testimony about the victim’s character. The court disagreed, explaining “the evidence revealed the factual circumstances of [the female victim’s] life relevant to explaining why she was engaging in prostitution on the night she was murdered by defendant at the hotel.” Id. at 31-32. Defendant also challenged certain testimony from the witness Rachel about her abusive childhood and experience in prostitution. Here the Court noted that defendant did not object to this portion of Rachel’s testimony at trial, and this “may have been part of defendant’s trial strategy” as defense counsel questioned Rachel regarding her experiences as a prostitute during cross-examination. Id. at 33. This represented invited error, and to the extent other portions of the testimony were objectionable, the Court found they were introductory evidence that provided context for the jury about how she crossed paths with defendant. (2) In the sentencing phase, two additional women, Keyona and Keyana, offered testimony about defendant’s violence towards them, and defendant again objected to testimony about their backgrounds. For sentencing, the rules of evidence did not apply, and the Rule 403 balancing test was not relevant. The Court found no error admitting the testimony as it introduced the women to the jury and “it showed a course of conduct by defendant of engaging in violent acts against vulnerable women and prostitutes.” Id. at 37. Defendant also argued that the trial court erred by instructing the jury they could consider evidence from the guilt-innocence phase of trial during their sentencing deliberations, but the Court dispensed with the argument as it was not error.

(D) Admission of Photographic Evidence from the Crime Scene – Defendant argued that the admission of nine photographs in State’s Exhibit 3 were unnecessarily repetitive and cumulative “because other evidence presented at trial showed that [the female victim] was found naked by the door of the hotel room, that her cause of death was a bullet wound to the chest, and that shell casings were found near her body.” Id. at 41. The Court walked through each of the photographs, determining they were independently useful by providing perspective and information related to the scene. Ultimately the Court determined “these photographs provided sufficiently distinct information of independent value to the State’s case, making them neither unnecessarily duplicative nor excessive.” Id. at 42-43.

(E) Failing to Dismiss Charges for First-Degree Murder of Female Victim – Defendant argued error in denying his motion to dismiss for insufficient evidence the first-degree murder charge on both theories of felony murder and premeditation and deliberation. (1) For felony murder, defendant argued the State’s evidence failed to establish the murder occurred during the commission of an attempted rape or robbery. The Court first established that “[Rule] 404(b) evidence may be considered when determining whether the State has presented sufficient evidence of a defendant’s intent to commit an underlying crime.” Id. at 46. The Rule 404(b) testimony here “demonstrated that defendant had a common scheme or plan to rape and rob prostitutes.” Id. The Court then found an “overt act” towards the felonies when defendant entered the female victim’s hotel room. Id. at 48. (2) Dispensing with the premeditated murder argument, the Court explained that there was no time requirement to constitute premeditation. Here, defendant arrived at the hotel with a loaded weapon, suggesting he was prepared to engage in violence. The female victim did not provoke defendant and she was unarmed, and defendant fired two shots at her face and chest, showing he had a deliberate intent to kill.

(F) Failing to Dismiss Charges for First-Degree Murder of Male Victim – Defendant also argued error in denying his motion to dismiss the murder charge for the victim shot by his accomplice in the hallway. The Court considered whether evidence supported the acting-in-concert doctrine for defendant’s conviction. (1) For felony murder, the Court found sufficient evidence to support defendant and his accomplice acted “in a common plan or scheme to commit rape and robbery with a dangerous weapon” and the male victim “was killed in pursuit thereof” even though he was not the intended victim. Id. at 52. (2) The Court also found sufficient evidence of premeditation and deliberation, as “[the accomplice’s] violence against [the male victim] was unprovoked, [the male victim] was unarmed, and nine separate rounds were fired by [the accomplice], with multiple gunshot wounds to [the male victim’s] body.” Id. at 53. The Court also noted that it was “foreseeable that a prostitute would have another individual monitoring business-related activity for safety and protection” justifying the charge. Id.

(G) Finding of the Aggravating Circumstance that the Murders were Committed During the Commission of an Attempted Rape and Attempted Robbery – Defendant argued that insufficient evidence supported the aggravating circumstance, as with the felony murder argument above. The Court explained that although defendant failed to object at trial, his objection was preserved as the trial court should have known he was contesting this factor. However, “the evidence of the attempted rape and armed robbery of [the female victim] was sufficient for its submission to the jury as an aggravating factor.” Id. at 55.  

(H) Trial Court’s Failure to Submit the Enmund/Tison Issue to the Jury for the Murder of the Male Victim – Defendant argued error under that Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137 (1987), as he did not shoot the male victim, although defendant did not raise this objection at trial. The Court first explained Enmund’s holding where “[t]he Supreme Court determined that imposition of the death penalty on those who had not manifested an intent to kill violates the Eighth Amendment.” Slip Op. at 56. The holding in Tison “essentially concluded that major participation in felonious conduct in which there is a significant risk of death is no different for Eighth Amendment purposes than the intent to kill issue that Enmund confronted.” Id. at 57-58. The Supreme Court of North Carolina held in State v. Robinson, 342 N.C. 74 (1995), that an Enmund/Tison instruction is not required if a defendant is convicted of first-degree murder based on premeditation and deliberation. The Court explained that the fact pattern here resembled Tison, as defendant was armed and actively involved in the planning and execution of the violent crimes, and in footnote 7 pointed out that the trial court provided an instruction on malice similar to the Enmund/Tison instruction in question. This led the Court to conclude that even if failing to provide an explicit Enmund/Tison instruction was error, it did not represent plain error.

(I) Jury Instructions Regarding the Use of the Same Evidence to Support More Than One Aggravating Circumstance – Defendant argued error in failing to instruct the jury that it could not use the same evidence to support more than one aggravating circumstance; here the circumstances were G.S. 15A-2000(e)(5) (during attempt or flight after robbery or rape) and (e)(11) (part of a course of conduct including other crimes of violence). The Court first noted that under State v. Moseley, 338 N.C. 1 (1994), the circumstances would only be redundant if there is a “complete overlap” of the evidence supporting each circumstance. Slip Op. at 60. Here testimony from two witnesses supported both (e)(5) and (e)(11), but “substantial separate evidence from additional victims that were subjected to the ongoing course of conduct” supported the (e)(11) circumstance, meaning no error. Id. at 61.

(J) Trial Court’s Denial of Defendant’s Motion to Suppress a Witness’s In-Court Identification – During sentencing, a witness testified about an encounter she had with defendant in 2016 while working as a prostitute in a Raleigh hotel. Before the witness testified, the trial court allowed voir dire about her identification of defendant; after being contacted by a Raleigh police officer, the witness conducted research on her own and determined defendant was the same person she encountered in 2016. Defendant objected to the witness’s identification, arguing it was tainted by government action, but the objection was overruled. Looking at the limited contact between the Raleigh police officer and the witness, the Court concluded her identification “was not a result of State action and does not violate defendant’s due process rights.” Id. at 66.

(K) Trial Court’s Final Mandate for First-Degree Murder Under the Theory of Felony Murder – Defendant argued error by failing to repeat the elements for the underlying felonies of attempted rape and attempted robbery with a dangerous weapon, but failed to object to the instruction at trial. Here, the trial court informed the parties that it planned to give N.C.P.I.-Crim. 206.14, and defendant did not object or propose new instructions, meaning the review was for plain error. The Court explained that the trial court instructed on first-degree murder on the basis of malice, premeditation, and deliberation, then for felony murder, and then a final mandate. Although the final mandate did not contain the elements of the underlying felonies, the Court reviewed the instructions as a whole and concluded “the trial court thoroughly and correctly instructed the jury as to the elements of the underlying felonies.” Id. at 73.

(L) Cumulative Error in Denying Defendant a Fair Trial and Sentencing Hearing – Defendant argued the cumulative effect of the various errors he identified justified a new trial or sentencing. The Court disagreed, explaining “there can be no cumulative error because the trial court did not err.” Id. at 74.

(M) Excusing Jurors for Cause Based on Their Views on the Death Penalty – Defendant argued abuse of discretion in excusing three jurors for cause when they expressed hesitation in imposing the death sentence. The Court first explored the caselaw in this area, noting a prospective juror cannot be excused for general objections to the death penalty, but can be excused for holding views that prevent impartially performing the required duties. The Court then examined the transcript, concluding the answers of each prospective juror represented personal views that were at odds with the duties imposed on jurors, and the trial court did not abuse its discretion when allowing the three to be excused for cause.

(N) Peremptory Instructions on Three Mitigating Circumstances – Defendant argued error in failing to give peremptory instructions on three non-statutory mitigating circumstances related to defendant’s childhood, home environment, and mental health. Initially the State stipulated to the three disputed circumstances, but after further evidence was admitted, the State withdrew the stipulations. The Court first noted that peremptory instructions for mitigating circumstances were not appropriate when “the evidence is controverted or the evidence supporting the circumstance is not manifestly credible.” Id. at 84 (quoting State v. McLaughlin, 341 N.C. 426, 449 (1995)). Here, after looking at the testimony and evidence admitted during sentencing, the Court found controverted evidence or credibility issues with all three circumstances, meaning the trial court did not err.

(O) Defendant’s Motion to Strike the Death Penalty – Defendant argued that the District Attorney’s “discretion in seeking the death penalty and engaging in plea bargaining” created a system where the death penalty was effectively mandated similar to the now-repealed G.S. 15-162.1. Id. at 88. The Court rejected this interpretation of the discretion granted to the State and found no constitutional violation with the existing system.

(P) Lethal Injection as Cruel and Unusual – Defendant argued that North Carolina’s execution method was unconstitutional under the United States and North Carolina constitutions. The Court rejected defendant’s argument because he merely identified hypothetical risks and failed to “articulate how North Carolina’s lethal injection procedure creates a ‘substantial risk of serious harm.’” Id. at 91.

(Q) Preservation Issues – Defendant argued that the Court should invalidate the death penalty under international norms and prevailing standards of decency, and the indictment was insufficient because it did not include any elements elevating the crime of murder from second-degree to first-degree or allege aggravating circumstances. The Court noted these arguments have been rejected in the past, and pointed to several cases such as State v. Allen, 360 N.C. 297 (2006), and State v. Golphin, 352 N.C. 364 (2000). The Court also rejected defendant’s argument that the State was barred from “death qualifying” the jury, pointing to State v. Barts, 316 N.C. 666 (1986). Slip Op. at 93. Defendant additionally argued that the death penalty itself was unconstitutional in light of evolving standards of decency, which the Court again rejected.

(R) Ineffective Assistance of Counsel – In defendant’s final issue, he requested the Court dismiss his claims of ineffective assistance of counsel without prejudice so he could assert them in a MAR proceeding. The Court granted this request and dismissed the claims without prejudice.

Justice Earls, joined by Justice Riggs, concurred in the Court’s judgement that the first-degree murder convictions were proper, but provided a lengthy dissent finding errors with defendant’s sentencing. Id. at 98.