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STATE OF NORTH CAROLINA v. ELRICO DARNELL FOWLER
No. 164A00
(Filed 20 July 2001)
1.                                                                                                                      Evidence--hearsay--unavailable declarant
The trial court did not err in a capital trial by admitting an unavailable victim’s hearsay statements to
two officers under N.C.G.S. § 8C-1, Rule 804(b)(5), because: (1) the State could not procure the declarant’s
presence by process or other reasonable means since the victim moved to India and indicated he would not
return to the United States based on his injuries and the fact that he feared for his life in America; (2) the State
provided timely written notice of its intent to offer the statements at trial; (3) the State’s failure to supply an
address for the victim was acceptable under the circumstances; (4) the trial court concluded the victim’s
statements had sufficient guarantees of trustworthiness; (5) the proffered statement was offered as evidence of a
material fact; (6) the trial court concluded the statements were more probative on the point for which they were
offered than any other available evidence; and (7) the trial court concluded the admission of the statements
would serve the interests of justice.
2.                                                                                                                      Constitutional Law--right to confront witnesses--unavailable declarant
The trial court did not violate defendant’s confrontation rights in a capital trial by admitting an
unavailable victim’s hearsay statements to two officers, because: (1) the factors considered in reviewing the
admissibility of the statements under N.C.G.S. § 8C-1, Rule 804(b)(5) equally demonstrate the admissibility of
the statements under the Confrontation Clause since they show the statements are both necessary and reliable;
and (2) an independent review of the record reveals that the statements contain numerous guarantees of
trustworthiness including that the victim was an eyewitness to the shooting and spoke from personal
knowledge, the victim was motivated to aid in the quick capture of the perpetrator when he was extremely
frightened and feared further violence, the victim never recanted his version of the attack, and the victim did not
make his statements to receive any benefit from the State or to avoid prosecution.
3.                                                                                                                      Identification of Defendant--in-court--suggestiveness of identification procedure
A witness’s in-court identification of defendant in a capital trial did not deprive him of his due process
rights even though defendant contends the identification was the result of an impermissibly suggestive
procedure based on the cumulative effect of viewing photographic arrays and meeting with prosecutors,
because: (1) the trial court found the witness’s identification was based on his independent recollection of
defendant from the night of the crimes; (2) the record reveals that prosecutors told the witness when they met
with him before the pretrial hearing that he should tell the truth if he did not recognize defendant; (3) nothing
suggests that the prosecutors encouraged the witness to make a false identification; (4) although prosecutors
should avoid instructing the witness as to defendant’s location in the courtroom, there is insufficient evidence to
support defendant’s contention that prosecutors rigged the identification; and (5) the in-court identification was
not the only evidence pointing to defendant’s guilt.
4.                                                                                                                      Evidence--potentially exculpatory statement--defendant did not commit the crimes
The trial court did not abuse its discretion in a capital trial by excluding a potentially exculpatory
statement defendant made to another witness in jail concerning whether defendant said that he did not commit
the crimes at issue after the witness testified that he told defendant the gun he had purchased from defendant
had been destroyed, and defendant said he was glad and for the witness not to tell anyone about the gun,
because: (1) defendant’s self-serving statement of innocence was unnecessary for an understanding of the
testimony about the gun; and (2) it is unclear whether defendant’s statements about the gun and his assertion of
innocence were part of the same verbal transaction.
5.                                                                                                                      Robbery--dangerous weapon--motion to dismiss--sufficiency of evidence
The trial court did not err by denying defendant’s motion to dismiss the robbery with a dangerous
weapon charge for one of the victims even though defendant concedes the evidence was sufficient to prove he
stole the motel’s money, because the State’s evidence showed that: (1) the victim habitually carried cash in his
wallet; (2) the victim’s wallet, business cards, and birth certificate were lying by his side at the crime scene; and




(3) the wallet contained no money.
6.                                                                                                                    Robbery--dangerous weapon--jury instruction
The trial court did not commit plain error in its jury instructions concerning the robbery with a
dangerous weapon of one of the victims even though defendant contends the instruction allowed the jury to
convict him of this charge based solely on the taking of the motel’s money, because: (1) the instructions read as
a whole adequately explain the different requirements for each robbery charge; and (2) the trial court made
clear that defendant had to take the motel’s property to be guilty of the first robbery count and had to take the
victim’s property to be guilty of the second robbery count.
7.                                                                                                                    Sentencing--capital--aggravating circumstance--murder commited to avoid lawful arrest
The trial court did not err in a capital sentencing proceeding by submitting the N.C.G.S. § 15A-
2000(e)(4) aggravating circumstance that the murder was committed for the purpose of avoiding or preventing a
lawful arrest or escaping from custody, because: (1) no evidence exists to show that the victim either posed a
threat to defendant or tried to resist during the robbery; (2) defendant shot the victim from behind at close range
with a .44-caliber handgun; and (3) the victim was on the ground at the time of the shooting.
8.                                                                                                                    Sentencing--capital--death penalty--proportionate
The trial court did not err by sentencing defendant to the death penalty for a first-degree murder,
because: (1) defendant was convicted on the basis of malice and premeditation and deliberation and under the
felony murder rule; (2) defendant shot a helpless man who was lying on the floor and who was in no way
resisting defendant’s robbery; and (3) the jury found the N.C.G.S. §§ 15A-2000(e)(5) and (e)(11) aggravating
circumstances, either of which standing alone have been held sufficient to support the death penalty.
Appeal as of right pursuant to N.C.G.S.  §  7A-27(a) from a judgment
imposing a sentence of death entered by Bridges, J., on  14 November  1997 in
Superior Court, Mecklenburg County, upon a jury verdict finding defendant
guilty of first-degree murder.    On  31 January  2001 the Supreme Court
allowed defendant’s motion to bypass the Court of Appeals as to his appeal
of additional judgments.    Heard in the Supreme Court  13 February  2001.
Roy A. Cooper, Attorney General, by William B. Crumpler, Assistant
Attorney General, for the State.
James R. Glover for defendant-appellant.
MARTIN, Justice.
On  29 January  1996 the state indicted defendant Elrico Darnell Fowler
(defendant) for the first-degree murder of Bobby Richmond.    The state also
indicted defendant for assault with a deadly weapon with intent to kill
inflicting serious injury and two counts of robbery with a dangerous
weapon.    Defendant was tried capitally at the  13 October  1997 Criminal
Session of Superior Court, Mecklenburg County.    The jury found defendant




guilty of first-degree murder on the basis of malice, premeditation, and
deliberation and under the felony murder rule.    The jury also found
defendant guilty of both counts of robbery with a dangerous weapon and one
count of assault with a deadly weapon with intent to kill inflicting
serious injury.    Following a capital sentencing proceeding, the jury
recommended a sentence of death for the first-degree murder conviction.
The trial court entered judgment in accordance with that recommendation.
The trial court also sentenced defendant to terms of imprisonment for his
remaining convictions.
The evidence at trial is summarized as follows:    On  31 December  1995
at approximately  10:45 p.m., Bobby Richmond  (Richmond), an employee at a
Howard Johnson’s Motel in Charlotte, North Carolina, entered the motel
lobby looking for ice.    Bharat Shah  (Shah) was working as the motel night
clerk.    About five minutes later, two black males entered the motel and
approached the check-in counter.    One of the men pulled out a gun and
ordered Richmond to get on the ground.    The other man ordered Shah to  “open
the register and give  [him] the money.”    While Shah was handing over the
money, the man with the gun shot both Richmond and Shah.    He then ordered
Shah to open the office safe.    When Shah stated he did not have the
combination, the man shot Shah again.    Both assailants then fled the motel.
The Charlotte-Mecklenburg Police arrived at the scene at  11:04 p.m.
and found Richmond and Shah lying near the counter.    Richmond was
unresponsive.    Shah was struggling to speak with police.    He told the
police they had been robbed by two black males, one wearing a green jacket.
When paramedics arrived, they found a large wound in the middle of
Richmond’s back.    Richmond had no carotid pulse.    The paramedics determined
Shah’s life was in danger.    A hospital surgeon later found two wounds in
Shah’s left thigh, two more wounds in Shah’s back, and a wound in Shah’s
right forearm.
A high-velocity weapon caused Shah’s thigh injury.    Doctors removed




two  .44-caliber bullet jacket fragments from his forearm during surgery.    A
.44-caliber bullet jacket was also found in Richmond’s left lung.    Police
located a  .44-caliber bullet core in the motel carpet beneath Richmond’s
chest wound.    Police also found a  .44-caliber bullet jacket and a large
fragment from a  .44-caliber bullet jacket at the scene.    Both had been
fired from the same weapon used to shoot Richmond.    Other pieces of metal
found at the scene were also consistent with  .44- caliber ammunition.
Richmond had an entrance wound in his back and an exit wound in his
chest.    His chest was against a hard surface when he was shot.    The
evidence showed Richmond was likely shot from a distance of no more than
three feet.
Officers found Richmond’s wallet at the scene next to his body.    The
wallet contained no money.    The cash register drawer and a plastic change
drawer next to the register also contained no money.    Approximately  $300.00
was stolen from the motel during the robbery.
Jimmy Guzman  (Guzman), the owner of a restaurant in the motel lobby,
heard gunshots around  11:00 p.m.    Guzman looked through the glass door of
his restaurant and saw an individual standing behind the check-in counter,
looking down.    Guzman said the man was black, in his late twenties, and
approximately six feet tall.    The man was wearing a green toboggan and a
camouflage army jacket.    The man had a pointed nose and hair on his face
but not a full beard.    Shortly after the robbery, police showed Guzman a
man in a green jacket, but he was unable to say whether this was the man
from the motel.
On  8 January  1996 police showed Guzman a photo array which included a
1995 photo of defendant with a full beard.    Guzman said none of the men
looked like the one he saw in the motel.    On  11 January  1996 police showed
Guzman a second photo array with a picture of another suspect.    Guzman said
the picture of the other suspect resembled the man he had seen at the crime
scene.




On  14 January  1996 police showed Guzman another photo array produced
by a computer.    It included a picture taken two days earlier of defendant
with a slightly unshaven face.    Guzman picked out defendant’s picture as
the one most closely resembling the man at the motel.    He was unable to
state for sure, however, that defendant was the man he had seen.    On
3 April  1996 police showed Guzman another photo array, without a picture of
defendant.    Guzman selected two photos resembling the man he had seen.
Before the pretrial hearing on  14 October  1997, the prosecutor told
Guzman that at any proceeding where he was called to testify, defendant
would be seated between his attorneys at the defense table.    At the
pretrial hearing, Guzman identified defendant as the man he had seen.
Guzman said this identification was based on his memory of seeing defendant
at the crime scene.    At trial, Guzman again identified defendant as the man
he had seen.
On  1 January  1996 at approximately  4:00 p.m., Sergeant Diego Anselmo
visited Shah in the hospital.    Shah provided an account of the robbery and
shootings.    Shah said Richmond entered the lobby looking for ice around
10:45 p.m.    Shah described the two men who entered the motel and robbed and
shot him as black males around twenty-five or twenty-six years old, thinly
built, and approximately  5’7” tall.    He said both individuals wore red ski
caps with black stripes.    One man, wearing a gray and black flannel shirt,
asked for a room.    The other man, wearing a red flannel shirt, removed a
revolver from his waistband and ordered Richmond onto the ground.    The man
with no gun ordered Shah to open the register and give him the money.    As
Shah complied, the man in the red shirt shot Richmond and Shah.    The man
with the gun ordered Shah to open the safe.    When Shah stated that he did
not have the combination, the man shot Shah again.    Both individuals then
fled.
On  8 January  1996 Investigator Christopher Fish  (Investigator Fish)
interviewed Shah.    During this interview Shah provided additional details




about the robbery.    Shah stated he gave one of the men approximately
$300.00 out of the register.    The man to whom he handed the money was a
black male with small eyes and a goatee, and was approximately the same
height as Shah, about  5’4”.    This man was wearing a black checked flannel
shirt and dark toboggan.    Shah stated that the man at the end of the
counter with the gun was also black and looked similar to his accomplice
although he was a little taller.    This man had unshaven hair on his face
but not a full beard.    The man was wearing a red checked flannel shirt and
dark toboggan.    Shah thought the gun was black and about six inches long.
The man shot Richmond first and then shot Shah in the leg.    Investigator
Fish showed photographs to Shah at the interview, and one of the
photographs depicted defendant with a full beard.    Shah said during the
interview that he did not get a good look at the shooter because he was
primarily focused on the man taking the money.    Shah said he probably could
not recognize the suspects.
Shah was released from the hospital on  14 January  1996 and eventually
moved to India.    The state made repeated attempts to locate Shah.
Investigator Sam L. Price  (Investigator Price), an investigator with the
Charlotte-Mecklenburg Police Department, spoke to Shah’s brother in
California as early as September  1996.    Investigator Price obtained Shah’s
telephone number in India and spoke to Shah by phone in October  1996.
Investigator Price told Shah that the state would provide him with air
transportation, lodging, meals, and whatever was necessary to care for his
injuries if he would return to North Carolina to testify.    Investigator
Price further promised that Shah would be picked up in California and
provided police protection while in Charlotte.    Despite the state’s offer
to pay for his air transportation, accommodations, and meals, as well as to
provide police protection, Shah refused to return to the United States to
testify at trial.
The state provided defendant with written notice of    its intent to




offer Shah’s hearsay testimony at defendant’s trial.    In the state’s
initial notice, the state recited that Shah was living at an unknown
address in India.    The state later served defendant with an amended notice
that included Shah’s telephone number in India.
Several people testified concerning defendant’s statements and actions
before and after the events at the motel.    Jermale Jones  (Jones) said
defendant told him on Thanksgiving  1995 about a potential plot to rob a
Howard Johnson’s Motel.    Further, while incarcerated with Jones in the
Mecklenburg County jail in March  1996, defendant told Jones that he entered
the Howard Johnson’s with a handgun to attempt a robbery and that when the
people working at the motel made him ask twice for the money, defendant
shot them.    Defendant said the gun he used was  “a big old  .44.”
Edward Adams  (Adams) testified that he saw defendant at an apartment
around  8:00 p.m. on  31 December  1995.    Defendant left between  9:00 and
10:00 p.m. with two other men and returned between midnight and  1:00 a.m.
Defendant stated he was going to the Sugar Shack, a local nightclub, and
left with some other people.    On the evening of  1 January  1996, Adams
purchased a  .44-caliber revolver from defendant.    The gun was destroyed the
next day.    In April  1996 defendant spoke with Adams while they were both
incarcerated.    Defendant asked Adams where the gun was located, and Adams
told him the gun had been destroyed.    Defendant responded,  “I’m glad,” and
asked Adams not to tell people about the gun.    Defendant also told Adams
that the district attorney did not know the identity of the person who
purchased the gun.
Leo McIntyre, Jr.  (McIntyre) testified that he went to the Sugar Shack
on  31 December  1995 and spoke with defendant.    Defendant was dressed in
army fatigues.    Defendant told McIntyre that he shot two people during a
robbery at a Howard Johnson’s.    Defendant also stated that he only got two
or three hundred dollars and was now broke because he had paid for his
friends to get into the club.    Later on that week, McIntyre saw defendant




at a car wash.    Defendant told him then that, although he thought he had
killed both people at the robbery, one of them had lived.
Waymon Fleming  (Fleming) lived with defendant in December  1995.
Defendant told Fleming that he robbed the motel, obtained money from the
cash register, and then shot people who would not open the safe.    Several
days later, defendant informed Fleming of his plan to flee the state.
Fleming relayed this information to law enforcement officers, and defendant
was eventually apprehended.
Charlotte-Mecklenburg Police Officer James Saunders and Federal Bureau
of Investigation Special Agent David Martinez met with Shenitra Johnson
(Johnson) on  11 January  1996.    Johnson told them defendant arrived at her
house shortly after  11:30 p.m. on  31 December  1995 and left between  12:30
and  1:00 a.m.    She also stated that when defendant came over to Johnson’s
residence, he had a  .44-caliber gun, which he later sold.    However, at
trial Johnson testified that defendant arrived at her home around  10:30
p.m. and did not leave until sometime between  1:15 and  1:30 a.m.    She
further testified that she never saw defendant selling or trying to sell a
handgun at her apartment.
Additional facts will be provided below as necessary.
GUILT-INNOCENCE PHASE
[1] Defendant first contends the trial court erred by admitting Shah’s
hearsay statements to Sergeant Anselmo on  1 January  1996 and Investigator
Fish on  8 January  1996.    Defendant argues these statements were improperly
admitted in violation of North Carolina Rule of Evidence  804(b)(5) and his
right to confrontation under the Sixth Amendment to the United States
Constitution and Article I, Section  23 of the North Carolina Constitution.
Defendant also contends the admission of the challenged statements violated
his constitutional due process rights and his constitutional protections
from cruel and unusual punishment.
At the outset we note that defendant has waived appellate review of




his cruel and unusual punishment claims.    Defendant raises these
constitutional claims in his assignments of error and questions presented.
Nonetheless, he has not argued these claims in his brief or otherwise
provided any authority supporting these contentions.    Accordingly,
defendant has waived review of these claims.    See N.C. R. App. P.  28(a)
(“Questions raised by assignments of error in appeals from trial tribunals
but not then presented and discussed in a party’s brief[] are deemed
abandoned.”); N.C. R. App. P.  28(b)(5)  (“Assignments of error not set out
in the appellant’s brief, or in support of which no reason or argument is
stated or authority cited, will be taken as abandoned.”); State v.
Kilpatrick,  343 N.C.  466,  475,  471 S.E.2d  624,  630  (1996).
Defendant contends that the trial court erred in admitting Shah’s out-
of-court statements under N.C. R. Evid.  804(b)(5) and that their admission
violated his Sixth Amendment right to confront the witnesses against him.
We disagree.
Rule  804 provides in pertinent part:
(b) Hearsay exceptions.    The following are not excluded by the
hearsay rule if the declarant is unavailable as a witness:
(5)   Other Exceptions.    A statement not specifically covered
by any of the foregoing exceptions but having
equivalent circumstantial guarantees of
trustworthiness, if the court determines that  (A) the
statement is offered as evidence of a material fact;
(B) the statement is more probative on the point for
which it is offered than any other evidence which the
proponent can procure through reasonable efforts; and
(C) the general purposes of these rules and the
interests of justice will best be served by admission
of the statement into evidence.    However, a statement
may not be admitted under this exception unless the
proponent of it gives written notice stating his
intention to offer the statement and the particulars of
it, including the name and address of the declarant, to
the adverse party sufficiently in advance of offering
the statement to provide the adverse party with a fair
opportunity to prepare to meet the statement.
N.C.G.S.  §  8C-1, Rule  804(b)(5)  (1999).
In State v. Triplett,  316 N.C.  1,  340 S.E.2d  736  (1986), this Court




enunciated the guidelines for admission of hearsay testimony under Rule
804(b)(5).      First, the trial court must find that the declarant is
unavailable.    Second, the trial court must conduct a six-prong inquiry to
determine admissibility.    Id. at  9,  340 S.E.2d at  741.    The trial court
must consider the following:
(1) Whether the proponent of the hearsay provided proper notice
to the adverse party of his intent to offer it and of its
particulars;
(2) That the statement is not covered by any of the exceptions
listed in Rule  804(b)(1)-(4);
(3) That the statement possesses  “equivalent circumstantial
guarantees of trustworthiness”;
(4) That the proffered statement is offered as evidence of a
material fact;
(5) Whether the hearsay is  “more probative on the point for which
it is offered than any other evidence which the proponent can
produce through reasonable means”; and
(6) Whether  “the general purposes of  [the] rules  [of evidence]
and the interests of justice will best be served by admission of
the statement into evidence.”
State v. Ali,  329 N.C.  394,  408,  407 S.E.2d  183,  191-92  (1991)  (quoting
N.C.G.S.  §  8C-1, Rule  804(b)(5)); see also Triplett,  316 N.C. at  9,  340
S.E.2d at  741.
At a pretrial evidentiary hearing on  15-16 October  1997, the trial
court heard evidence relevant to the admissibility of Shah’s statements to
Sergeant Anselmo and Investigator Fish.    Following this hearing the trial
court determined that Shah was unavailable and made conclusions of law
concerning each of the six Triplett prongs.    On the basis of these
conclusions, the trial court ruled that Shah’s statements were admissible.
Defendant argues that Shah’s statements were insufficiently reliable to
meet the evidentiary and constitutional requirements for admission at
trial.    Defendant further contends that the trial court’s conclusion
concerning Shah’s unavailability was not supported by the evidence.
Rule  804 provides in pertinent part:




(a) Definition of Unavailability.                                                 “Unavailability as a
witness” includes situations in which the declarant:
(5)   Is absent from the hearing and the proponent of his
statement has been unable to procure his attendance
.  .  . by process or other reasonable means.
N.C.G.S.  §  8C-1, Rule  804(a)(5).
The trial court concluded that Shah was unavailable based on the
following findings of fact.    After the shooting Shah went to California and
lived with his brother, visited India, returned to the United States, and
then moved back to India on a permanent basis.    State officials attempted
to locate Shah in preparation for trial and learned he was living in India.
Shah informed the officials that there was nothing they could do to make
him return to the United States and testify.    Shah also stated that he
would not testify because of  (1) continual pain and disability from his
gunshot injuries which made it difficult for him to travel, and  (2) his
fear for his life in America.
In State v. Bowie,  340 N.C.  199,  207,  456 S.E.2d  771,  775, cert.
denied,  516 U.S.  994,  133 L. Ed.  2d  435  (1995), the declarant made a
statement to police and then moved to Philadelphia.      Prior to trial, the
state obtained an order from the trial court compelling the declarant to
“be taken into custody and delivered to a North Carolina officer to assure
her attendance at the trial.”    Id.    When officers attempted to take the
declarant into custody, she was not at her stated address.    Id.    The
declarant’s mother told the officers that the declarant had moved and that
she did not know the declarant’s new address or telephone number.    Id.    The
Court held that the evidence of record was sufficient to support the trial
court’s finding that the state could not procure the declarant’s presence
by process or other reasonable means.    Id.
In the present case, as in Bowie, the state was unable to determine
the declarant’s exact address.    Further, Shah refused to attend the




proceedings because of his injuries and fear for his safety.    The trial
court’s detailed findings of fact are sufficient to support its conclusion
that Shah was unavailable.
After establishing unavailability, the trial court considered the six-
prong Triplett inquiry to determine admissibility.    Triplett,  316 N.C. at
9,  340 S.E.2d at  741;    State v. Smith,  315 N.C.  76,  92-97,  337 S.E.2d  833,
844-847  (1985).
Under the first prong, the trial court must determine whether the
proponent of the hearsay testimony provided proper notice to the adverse
party of its intent to offer the testimony and the particulars of the
evidence.    Smith,  315 N.C. at  92,  337 S.E.2d at  844.    The state must
provide defendant with written notice of its intent to offer the statements
in adequate time for defendant to have a fair opportunity to meet the
statements.    Triplett,  316 N.C. at  12,  340 S.E.2d at  743.    The notice
requirement should be construed  “somewhat flexibly, in light of the express
policy of providing a party with a fair opportunity to meet the proffered
evidence.”    Id. at  12-13,  340 S.E.2d at  743.
Based on the following findings of fact, the trial court concluded
that the state provided timely written notice of its intent to offer Shah’s
statements at trial:                                                                  (1) the state filed written notice of its intent to
offer the statements approximately one month prior to the pretrial hearing;
(2) the state attached to that notice a copy of one of Shah’s statements as
well as an officer’s notes concerning the other statement, see State v.
Nichols,  321 N.C.  616,  623,  365 S.E.2d  561,  565  (1988)  (finding relevancy
in defendant’s receipt of the declarant’s statement well in advance of
trial); and  (3) the state filed an amended notice on  2 October  1997
providing defendant with a telephone number for Shah and indicating that
Shah was living at an unknown address in India.    These findings were
sufficient to support the trial court’s conclusion that the state provided
adequate notice of its intent to offer Shah’s statements into evidence at




trial.
We believe the state’s failure to supply an address for Shah was
acceptable under the present circumstances.    Investigator Price spoke with
Shah’s brother in California, obtained Shah’s telephone number in India,
and telephoned Shah at this number.    Having confirmed the accuracy of the
telephone number provided by Shah’s brother, the state provided defendant
with this contact information.    Obviously, the state could not provide what
it did not have but nonetheless provided defendant with a reliable means to
contact Shah.    Accordingly, the state’s failure to produce Shah’s address
in India did not deny defendant a fair opportunity to meet the evidence at
trial.
The trial court next considered, under the second prong, whether the
statements made by Shah in the hospital to Sergeant Anselmo and
Investigator Fish were covered by any of the other hearsay exceptions
listed in Rule  804(b)(1)-(4).    See State v. Deanes,  323 N.C.  508,  515,  374
S.E.2d  249,  255  (1988), cert. denied,  490 U.S.  1101,  104 L. Ed.  2d  1009
(1989).    Although the trial court found that Shah’s statements to police at
the crime scene could be admitted under other hearsay exceptions, it
determined that the statements made at the hospital did not fall under any
other exception.    Defendant has not shown that the trial court’s analysis
and conclusion on this issue were improper.
Next, the trial court considered whether, under the third prong, the
challenged statements possessed  “‘guarantees of trustworthiness’ that are
equivalent to the other exceptions contained in Rule  804(b).”    State v.
McLaughlin,  316 N.C.  175,  179,  340 S.E.2d  102,  104  (1986).    This Court has
directed the trial court to consider the following factors when analyzing
this question:                                                                        (1) the declarant’s personal knowledge of the underlying
event,  (2) the declarant’s motivation to speak the truth,  (3) whether the
declarant recanted, and  (4) the practical availability of the declarant at
trial for meaningful cross- examination.    State v. Tyler,  346 N.C.  187,




195,  485 S.E.2d  599,  603  (citing Triplett,  316 N.C. at  10-11,  340 S.E.2d at
742), cert. denied,  522 U.S.  1001,  139 L. Ed.  2d  411  (1997).
In the present case, the trial court concluded that Shah’s statements
had sufficient guarantees of trustworthiness.    This conclusion was premised
on the trial court’s detailed findings of fact that:                                 (1) Shah had personal
knowledge of the robbery and shooting as an eyewitness to the entire event,
compare Tyler,  346 N.C. at  199,  485 S.E.2d at  605  (holding declarant’s
hearsay testimony that defendant set her on fire was properly admitted
pursuant to Rule  804(b)(5) when the deceased declarant made statements to
police in the hospital from her personal knowledge and had no reason to lie
and never recanted the statement), with State v. Swindler,  339 N.C.  469,
450 S.E.2d  907  (1994)  (holding hearsay statements were improperly admitted
where the declarant had no personal knowledge of the events described in
the letter the proponent sought to admit, the declarant refused to
acknowledge writing the letter, the declarant refused to testify, the
letter incriminated the defendant, and the declarant was motivated to talk
to obtain a deal with police);  (2) Shah was motivated to speak truthfully
to law enforcement officers to facilitate defendant’s immediate capture,
see Triplett,  316 N.C. at  10-12,  340 S.E.2d at  742; State v. Brown,  339
N.C.  426,  437-38,  451 S.E.2d  181,  188  (1994), cert. denied,  516 U.S.  825,
133 L. Ed.  2d  46  (1995);  (3) Shah never recanted his account or description
of the events in any way, see Tyler,  346 N.C. at  199,  485 S.E.2d at  605;
(4) Shah had no specific relationship with defendant or police that would
encourage him to provide anything other than a truthful statement, see
Triplett,  316 N.C. at  11,  340 S.E.2d at  742; Brown,  339 N.C. at  437,  451
S.E.2d at  188; and  (5) in consideration of Shah’s availability for cross-
examination, compelling Shah’s attendance at trial provided huge and
insurmountable obstacles, see State v. Chapman,  342 N.C.  330,  341-42,  464
S.E.2d  661,  667-68  (1995)  (holding the trial court properly considered the
state’s unsuccessful attempts to find the declarant), cert. denied,  518




U.S.  1023,  135 L. Ed.  2d  1077  (1996); see also Triplett,  316 N.C. at  11,
340 S.E.2d at  742.    These findings are sufficient to support the trial
court’s conclusion that Shah’s statements possessed sufficient guarantees
of trustworthiness for admission at defendant’s trial.    We further note
that the principal reasons for Shah’s unavailability appear to be the
difficulty of the long journey and his fear for his life.    Such reasons do
not suggest any improper motivation to avoid testifying, and they support
the trial court’s conclusion that Shah’s statements were trustworthy.
Next, under the fourth Triplett prong, the trial court determined that
the proffered statement was offered as evidence of a material fact.    See
Smith,  315 N.C. at  94-95,  337 S.E.2d at  845.    The trial court concluded
that Shah’s statements were material because the statements described the
assailants and the details of the crime.    Accordingly, this prong of the
inquiry is fully satisfied.
The trial court next considered whether, under the fifth prong, Shah’s
statements were more probative on the point for which they were offered
than other available evidence.                                                     “Th[is] requirement imposes the obligation
of a dual inquiry: were the proponent’s efforts to procure more probative
evidence diligent, and is the statement more probative on the point than
other evidence that the proponent could reasonably procure?”    Smith,  315
N.C. at  95,  337 S.E.2d at  846.    The trial court first concluded that Shah’s
hearsay statements were more probative than any other evidence because Shah
was the only surviving victim of the crimes, Shah was the only eyewitness
to the entire event, and Shah was the closest person to the assailants and
therefore had the best opportunity to observe them.    The trial court also
found that the state was diligent in its efforts to produce Shah’s presence
at defendant’s trial and concluded that it was practically impossible to
return Shah to this country to testify.
Defendant argues, however, that the trial court failed to adequately
consider the first prong of the two-part probativeness inquiry outlined in




Smith, which requires a showing that the proponent’s efforts to procure
more probative evidence were diligent.    Id.    Defendant further contends
that the state’s lack of diligence denied defendant the opportunity to
cross-examine Shah.
Contrary to defendant’s contention, the trial court’s findings support
a conclusion that the state acted diligently in trying to produce Shah to
testify.    Although the live testimony of the hearsay declarant will
ordinarily be more probative than his prior statement, see id., the trial
court specifically found that it was practically impossible to return Shah
to this country to testify.    The trial court made the following findings of
fact to support its conclusion:                                                 (1) state officials contacted Shah in
India, and Shah informed them there was no way he would return to the
United States to testify;  (2) Shah was not willing to return to this
country because his painful injuries made travel difficult and he feared
for his safety;  (3) the state spoke numerous times with Shah’s brother in
California in attempts to locate Shah;  (4) the state offered to provide
Shah with police protection during his stay; and  (5) the state offered to
pay for Shah’s airfare, lodging, meals, and care for his injuries during
his stay.    These facts are sufficient to support the trial court’s
conclusion that the state’s efforts to produce Shah were diligent.
The final inquiry under the six-prong Triplett analysis is whether the
admission of the hearsay statements serves the interests of justice and the
general purpose of the rules of evidence.    Smith,  315 N.C. at  96,  337
S.E.2d at  846-47.    The trial court concluded that admission of Shah’s
statements would serve the interests of justice.    It considered numerous
factors, including that Shah’s prior inability to identify defendant could
be raised during cross-examination of the witnesses through whom Shah’s
statements would be introduced.    The trial court thus determined that
Shah’s statements would not be unduly prejudicial to defendant.    Defendant
has not shown error in the trial court’s analysis.




Accordingly, the witness has been properly deemed to be unavailable,
and the trial court satisfied all six prongs of the Triplett analysis.    We
find no error in the admission of the victim’s hearsay statements under
Rule  804(b)(5).
[2] We also reject defendant’s contention that the admission of Shah’s
hearsay statements violated his right to confrontation.    Under the Sixth
Amendment to the United States Constitution,  “[i]n all criminal
prosecutions the accused shall enjoy the right  .  .  . to be confronted with
the witnesses against him.”    U.S. Const. amend. VI.    The North Carolina
Constitution provides a similar right.    N.C. Const. art. I,  §  23; see also
State v. Chandler,  324 N.C.  172,  178-79,  376 S.E.2d  728,  733  (1989).    This
Court has generally construed the right to confrontation under our state
constitution consistent with the federal provision.    See, e.g., State v.
Jackson,  348 N.C.  644,  653-54,  503 S.E.2d  101,  107  (1998);    Deanes,  323
N.C. at  514-25,  374 S.E.2d at  254-61.
This Court uses a two-part test to determine whether statements
admissible under a hearsay exception violate the Confrontation Clause.
Ohio v. Roberts,  448 U.S.  56,  65,  65 L. Ed.  2d  597,  607  (1980);    Deanes,
323 N.C. at  525,  374 S.E.2d at  260.    First, the prosecution must  “either
produce, or demonstrate the unavailability of, the declarant whose
statement it wishes to use.”    Roberts,  448 U.S. at  65,  65 L. Ed.  2d at  607.
This prong of the Roberts inquiry is called the  “Rule of Necessity.”    Id.
In analyzing this prong,  “‘[a] witness is not  “unavailable” for purposes of
the  .  .  . exception to the confrontation requirement unless the
prosecutorial authorities have made a good-faith effort to obtain his
presence at trial.’”    Id. at  74,  65 L. Ed.  2d at  613  (quoting Barber v.
Page,  390 U.S.  719,  724-25,  20 L. Ed.  2d  255,  260  (1968))  (alterations in
original).
The second prong of the Roberts analysis requires the prosecutor to
show that the statements at issue have sufficient  “indicia of reliability.”




Id. at  66,  65 L. Ed.  2d at  607.    Assuming testimony falls within a  “firmly
rooted” hearsay exception, this reliability is presumed without more.    Id.
at  66,  65 L. Ed.  2d at  608.    Testimony that does not fall within a  “firmly
rooted” exception, however, will be excluded absent a showing of
particularized guarantees of trustworthiness drawn from the totality of the
circumstances surrounding the statements.    Idaho v. Wright,  497 U.S.  805,
818-19,  111 L. Ed.  2d  638,  654-55  (1990); see also Tyler,  346 N.C. at  200,
485 S.E.2d at  606.    The United States Supreme Court has stated that
residual hearsay exceptions such as Rule  804(b)(5) are not firmly rooted.
Wright,  497 U.S. at  817,  111 L. Ed.  2d at  653;    Tyler,  346 N.C. at  200,  485
S.E.2d at  606;    State v. Felton,  330 N.C.  619,  643,  412 S.E.2d  344,  359
(1992).
This Court recently stated that the two-part Roberts test is
incorporated within the trustworthiness and probativeness prongs of the
six-part inquiry from Smith and Triplett.    Brown,  339 N.C. at  439,  451
S.E.2d at  189; Deanes,  323 N.C. at  525,  374 S.E.2d at  260.    In the present
case, the factors considered in reviewing the admissibility of Shah’s
statements under Rule  804(b)(5) equally demonstrate the admissibility of
the statements under the Confrontation Clause because they show Shah’s
statements are both necessary and reliable.    Brown,  339 N.C. at  439,  451
S.E.2d at  189.
The United States Supreme Court recently stated, however, that in
analyzing  “whether the admission of a declarant’s out-of-court statements
violate the Confrontation Clause, courts should independently review
whether the government’s proffered guarantees of trustworthiness satisfy
the demands of the Clause.”    Lilly v. Virginia,  527 U.S.  116,  137,  144 L.
Ed.  2d  117,  134  (1999).    Accordingly, we have conducted a full and
independent review to determine whether Shah’s statements contained
sufficient  “particularized guarantees of trustworthiness” for admission
consistent with the Confrontation Clause.    Id. at  125,  144 L. Ed.  2d at




127.
Upon careful review of the record, we have determined that Shah’s
statements contain numerous guarantees of trustworthiness.    As indicated
above, Shah was an eyewitness to the shooting and thus spoke from personal
knowledge.    Further, Shah was apparently extremely frightened that he might
be the victim of further violence and was thus motivated to speak
truthfully to law enforcement officers to aid in the quick capture of the
perpetrator.    Shah never recanted his version of the attack.    Moreover,
Shah did not make his statements to receive any benefit from the state or
to avoid prosecution.    Accordingly, based on our independent review of the
record, we conclude that Shah’s statements contained  “particularized
guarantees of trustworthiness.”    We thus reject defendant’s contention that
admission of Shah’s hearsay statements violated the Sixth Amendment
Confrontation Clause.
[3] Defendant next argues that Guzman’s in-court identification
deprived defendant of his rights to due process and freedom from cruel and
unusual punishment.    Before trial, defendant moved to suppress any in-court
identification by Guzman.    The trial court denied this motion and permitted
Guzman to identify defendant at a pretrial hearing and at trial.
As noted earlier in this opinion, defendant advances no argument
concerning cruel and unusual punishment in his brief.    Accordingly, this
argument is deemed abandoned.    See N.C. R. App. P.  28(a),  (b)(5).
As to due process, defendant argues that Guzman’s in-court
identification was influenced by viewing several photographic lineups and
receiving instruction from prosecutors before court on how to identify
defendant.    Defendant notes that Guzman was never able to identify him
confidently in photographic lineups prior to trial and in fact sometimes
picked other people out of the lineups.    Further, prior to the pretrial
hearing, prosecutors met with Guzman, told him defendant’s name, and
instructed him that defendant would be seated at the defense table between




his attorneys.    Thus, defendant contends the in-court identification
violated his due process rights.
Defendant assigns special significance to the trial court’s finding
that:
Mr. Guzman indicated his identification of the Defendant in open
Court  [was] based upon his recollection of the appearance of the
Defendant as being the person behind the counter at Howard
Johnson’s Motel on December  31st,  1995 and not based upon any
suggestion or inference in conferences with the police officers
or with prosecuting attorneys.
Defendant contends that the last portion of this finding is not
supported by the evidence because Guzman never stated whether his in-court
identification was influenced by conferences with police or prosecutors.
Indeed, defendant argues the trial court never adequately considered
whether the state’s instructions to Guzman were overly suggestive.
In analyzing defendant’s arguments, we must consider whether the
identification procedure was so suggestive as to create a substantial
likelihood of irreparable misidentification.    United States v. Marson,  408
F.2d  644,  650  (4th Cir.  1968), cert. denied,  393 U.S.  1056,  21 L. Ed.  2d
698  (1969);    State v. Simpson,  327 N.C.  178,  186,  393 S.E.2d  771,  776
(1990);    State v. Hannah,  312 N.C.  286,  290,  322 S.E.2d  148,  151  (1984).
If so, the identification should be suppressed on due process grounds.
Simpson,  327 N.C. at  186,  393 S.E.2d at  776.    This due process analysis
requires a two-part inquiry.    First, the Court must determine whether the
identification procedures were impermissibly suggestive.    State v. Powell,
321 N.C.  364,  368-69,  364 S.E.2d  332,  335, cert. denied,  488 U.S.  830,  102
L. Ed.  2d  60  (1988); Hannah,  312 N.C. at  290,  322 S.E.2d at  151; State v.
Headen,  295 N.C.  437,  439,  245 S.E.2d  706,  708  (1978).    Second, if the
procedures were impermissibly suggestive, the Court must then determine
whether the procedures created a substantial likelihood of irreparable
misidentification.    Powell,  321 N.C. at  369,  364 S.E.2d at  335; Hannah,  312
N.C. at  290,  322 S.E.2d at  151; Headen,  295 N.C. at  439,  245 S.E.2d at  708.
The test under the first inquiry is  “whether the totality of the




circumstances reveals a pretrial procedure so unnecessarily suggestive and
conducive to irreparable mistaken identity as to offend fundamental
standards of decency and justice.”    Hannah,  312 N.C. at  290,  322 S.E.2d at
151.                                                                                   “[T]he viewing of a defendant in the courtroom during the various
stages of a criminal proceeding by witnesses who are offered to testify as
to identification of the defendant is not, of itself, such a confrontation
as will taint an in-court identification unless other circumstances are
shown which are so  ‘unnecessarily suggestive and conducive to irreparable
mistaken identification’ as would deprive defendant of his due process
rights.”    State v. Covington,  290 N.C.  313,  324,  226 S.E.2d  629,  638  (1976)
(quoting Hannah,  312 N.C. at  292,  322 S.E.2d at  152).
In the present case, the trial court made extensive findings
concerning the photographic arrays shown to Guzman and concluded that
Guzman’s in-court identification was based on his independent recollection
of defendant from the night of the crimes.    The trial court’s findings of
fact are binding on appeal when supported by competent evidence.    Hannah,
312 N.C. at  291,  322 S.E.2d at  151-52.    There is ample evidence in the
present record to support the trial court’s findings.    Guzman testified he
was confident that defendant was the man he saw in the motel lobby on
31 December  1995.    Guzman stated that his identification was based on his
memory of seeing defendant in person in the motel lobby on the night of the
shootings and not on seeing photographs of defendant.    Moreover, the record
reveals    prosecutors told Guzman when they met with him before the pretrial
hearing that he should tell the truth if he did not recognize defendant.
This evidence is sufficient to support the trial court’s findings,
which in turn support its ultimate legal conclusion that Guzman’s
identification was not the result of an impermissibly suggestive procedure.
Nothing in the trial court’s findings or in the evidence suggests that the
prosecutors encouraged Guzman to make a false identification.    The meeting
between prosecutors and Guzman appears to have been nothing more than an




opportunity to go over what would happen in court.    The prosecutors did not
provide Guzman with any information that would not have been readily
apparent to him during the proceedings.    Thus, although prosecutors should
avoid instructing the witness as to defendant’s location in the courtroom,
there is nonetheless insufficient evidence to support defendant’s
contention that prosecutors rigged Guzman’s identification.    Accordingly,
although Guzman never explicitly testified that his meeting with
prosecutors did not affect his in-court identification, the evidence in the
record supports the trial court’s conclusion that Guzman’s identification
was not a result of prosecutorial suggestion.
Nor do we agree with defendant’s suggestion that the cumulative effect
of viewing photographic arrays and meeting with prosecutors caused Guzman’s
in-court identification to be a violation of defendant’s due process
rights.    The sequence of events leading to Guzman’s in-court identification
was not unnecessarily suggestive.    When, as here, the first prong of the
analysis  “is answered in the negative, we need proceed no further.”
Hannah,  312 N.C. at  290,  322 S.E.2d at  151.
Assuming arguendo that the identification procedures used here were
impermissibly suggestive, we nonetheless conclude, under the second prong
of the analysis, that such procedures did not create a substantial
likelihood of irreparable misidentification.    See Powell,  321 N.C. at  369,
364 S.E.2d at  335; Hannah,  312 N.C. at  290,  322 S.E.2d at  151; Headen,  295
N.C. at  439,  245 S.E.2d at  708.
Finally, we note that Guzman’s in-court identification was by no means
the only evidence pointing to defendant’s guilt.    At trial, three witnesses
testified that defendant admitted entering the Howard Johnson’s to attempt
a robbery and that he shot two people.    One witness testified that
defendant told him he had only gotten two or three hundred dollars from the
robbery and that he was broke because he had paid for his friends to get
into the Sugar Shack.    Another person testified that defendant sold him a




.44-caliber revolver on the evening of  1 January  1996, the day after the
murders.
Accordingly, Guzman’s in-court identification did not violate
defendant’s due process rights.    Alternatively, assuming error arguendo,
any due process violation was harmless beyond a reasonable doubt.    See
N.C.G.S.  §  15A-1443(b)  (1999).    This assignment of error fails.
[4] Defendant next argues that the trial court erred in excluding a
potentially exculpatory statement defendant made to Edward Adams  (Adams).
As indicated above, Adams and defendant spoke while in jail.    Adams
said the gun he had purchased from defendant had been destroyed.    Defendant
said,  “I’m glad,” and told Adams not to tell people about the gun.    On
cross-examination, defendant asked Adams if defendant had also said that
defendant did not commit the crimes at issue.
The state objected to this question, and the trial court conducted
voir dire outside the jury’s presence.    The trial court then considered the
proposed testimony under North Carolina Rule of Evidence  403 and, by
analogy, Rule of Evidence  106.    The trial court concluded that defendant’s
self-serving statement of innocence was not necessary for an understanding
of the testimony about the gun.    Accordingly, the trial court sustained the
state’s objection to the proposed testimony.
First, defendant assigns error to the exclusion of the testimony as a
violation of his right to freedom from cruel and unusual punishment.    We
note, however, that defendant advances no argument in his brief concerning
cruel and unusual punishment.    Accordingly, this argument is deemed
abandoned.    See N.C. R. App. P.  28(a),  (b)(5).
Second, defendant argues that exclusion of his statement of innocence
was a violation of his right to due process.    It is widely accepted that if
the state submits a defendant’s confession, the defendant may then
introduce other statements made by him if they involve a specific issue
related to the inculpatory statements put forth by the state.    State v.




Vick,  341 N.C.  569,  578-79,  461 S.E.2d  655,  660  (1995); see also State v.
Lovin,  339 N.C.  695,  709-10,  454 S.E.2d  229,  237  (1995);  2 Kenneth S.
Broun, Brandis and Broun on North Carolina Evidence  §  212, at  67  (5th ed.
1998).    However, statements may be admitted under this rule only if they
were made during the same  “verbal transaction” as the confession.    Vick,
341 N.C. at  579,  461 S.E.2d at  660  (holding admission of earlier statements
by defendant did not mean later statements by defendant in a different room
were admissible); State v. Jackson,  340 N.C.  301,  319,  457 S.E.2d  862,  873
(1995)  (holding a statement was inadmissible where it was made the same day
but at a different time as a confession).
We further note that whether evidence should be excluded under
Rule  403 or under the common law rule of completeness codified in Rule  106
is within the trial court’s discretion.    State v. Thompson,  332 N.C.  204,
219-20,  420 S.E.2d  395,  403  (1992); State v. Mason,  315 N.C.  724,  731,  340
S.E.2d  430,  435  (1986).    An  “[a]buse of discretion results where the
court’s ruling is manifestly unsupported by reason or is so arbitrary that
it could not have been the result of a reasoned decision.”    State v.
Hennis,  323 N.C.  279,  285,  372 S.E.2d  523,  527  (1988).
Here, it is unclear whether defendant’s statements about the gun and
his assertion of innocence were part of the same verbal transaction.
According to Adams, defendant stated that he did not commit the crimes at
issue during the  “same period of time that he was talking about the gun.”
In his testimony, however, Adams indicated that defendant’s statement of
innocence was made on a different day than at least some gun-related
comments.    While defendant stated his innocence on only one occasion,
defendant and Adams apparently discussed the gun at numerous different
times.    Thus, we cannot conclude that the trial court abused its discretion
in excluding defendant’s alleged statements of innocence.    Defendant’s
argument, therefore, must fail.
[5] Defendant next argues that the evidence introduced at trial was




insufficient to prove beyond a reasonable doubt that he robbed Richmond
with a dangerous weapon.    Defendant claims this conviction violated his
rights to due process and freedom from cruel and unusual punishment.
Again, defendant advances no argument concerning cruel and unusual
punishment in his brief.    Accordingly, this argument is deemed abandoned.
See N.C. R. App. P.  28(a),  (b)(5).
Defendant was indicted for armed robbery of both the Howard Johnson’s
Motel and Richmond.    The trial court denied defendant’s motion to dismiss
the charge of the Richmond count, and the jury found defendant guilty of
both counts.
Defendant concedes that the evidence was sufficient to prove he stole
the motel’s money.    Defendant argues, however, that the evidence is
insufficient to show he stole money belonging to Richmond.    Therefore, this
Court must decide whether the trial court properly concluded that
sufficient evidence existed to submit the Richmond count to the jury.
In ruling on a defendant’s motion to dismiss, the trial court should
consider if the state has presented substantial evidence on each element of
the crime and substantial evidence that the defendant is the perpetrator.
State v. Israel,  353 N.C.  211,  216,  539 S.E.2d  633,  636  (2000).    The
evidence should be viewed in the light most favorable to the state, with
all conflicts resolved in the state’s favor.    Id. at  216,  539 S.E.2d at
637; State v. Grooms,  353 N.C.  50,  78,  540 S.E.2d  713,  731  (2000).    The
defendant’s evidence should be considered only if it is favorable to the
state.    Israel,  353 N.C. at  216,  539 S.E.2d at  637; Grooms,  353 N.C. at  79,
540 S.E.2d at  731.    If substantial evidence exists supporting defendant’s
guilt, the jury should be allowed to decide if the defendant is guilty
beyond a reasonable doubt.    Grooms,  353 N.C. at  79,  540 S.E.2d at  731.
In the instant case, the state’s evidence showed that Richmond
habitually carried cash in his wallet.    Evidence of a habit can be used to
prove an element of a criminal offense.    See State v. Howell,  335 N.C.  457,




473,  439 S.E.2d  116,  125  (1994).      The state’s evidence also showed that
Richmond’s wallet, business cards, and birth certificate were lying by his
side at the scene of the crime.    The wallet contained no money.
In State v. Palmer,  334 N.C.  104,  112,  431 S.E.2d  172,  176  (1993),
this Court considered whether sufficient evidence of armed robbery existed.
We held the jury’s finding that money was taken at the time of the killing
was supported by evidence that the victim always had money, that the
victim’s purse had been emptied, and that the purse contained no money.
Id. at  112-13,  431 S.E.2d at  176.
Similarly, in State v. Quick,  329 N.C.  1,  8,  405 S.E.2d  179,  184
(1991), the victim’s billfold was found on the floor next to his body.    The
billfold contained personal papers but no cash.    Id.    We held the
conclusion that an armed robbery occurred during the killing was supported
in part by evidence that the victim carried money on his person and that
the victim’s empty wallet was found at the scene.    Id. at  20,  405 S.E.2d at
191.
Viewing the evidence in the light most favorable to the state, we hold
the trial court in the present case properly denied defendant’s motion to
dismiss the Richmond count of robbery with a dangerous weapon.    The
evidence was sufficient to permit a reasonable jury to find defendant
guilty of this charge beyond a reasonable doubt.
[6] Next, defendant assigns error to the trial court’s instructions to
the jury concerning the Richmond count of robbery with a dangerous weapon.
Defendant contends the instructions allowed the jury to convict him of
robbing Richmond even if it did not find that any of Richmond’s personal
property had been taken.    Defendant thus claims violations of his rights to
due process, freedom from double jeopardy, and freedom from cruel and
unusual punishment.    Defendant advances no argument in his brief concerning
double jeopardy or cruel and unusual punishment, and these arguments are
accordingly deemed abandoned.    See N.C. R. App. P.  28(a),  (b)(5).    Because




defendant failed to object at trial, defendant limits his attack on the
instructions to plain error.
The relevant instructions provide:
Now, the Defendant has been charged with robbery with a
firearm on two counts, one of which being by taking property of
UDP, Incorporated, doing business as Howard Johnsons; the other
count being an allegation of taking property of Bobby Richmond
with a firearm.
So then I charge that if you find from the evidence in this
case, beyond a reasonable doubt, that on or about the alleged
date, the Defendant had in his possession a firearm, and that he
took and carried away property of UDP, Incorporated, which
operated under the business name Howard Johnsons from the person
or presence of a person without the voluntary consent of that
person by endangering or threatening the life of that person with
the use or threatened use of a firearm, the Defendant knowing he
was not entitled to take the property, and intending to deprive
that person of its use permanently, then it would be your duty to
return a verdict of guilty of robbery with a firearm as to that
particular charge.
However, if you do not so find, or have a reasonable doubt
as to one or more of these things, it would be your duty to
return a verdict of not guilty.
Now, so as to the  [sic] distinguish between those two cases
on the verdict sheet under the possible verdict guilty of robbery
with a dangerous weapon, it says in parenthesis, of UDP,
Incorporated, doing business as Howard Johnsons.
Your possible verdicts on that verdict sheet, and that is
case number  96-CRS-2910, your possible verdicts are guilty of
robbery with a dangerous weapon, or not guilty.    You simply
choose one of those verdicts according to your unanimous
decision.
In the other case, I instruct you, likewise, that if you
find from the evidence, beyond a reasonable doubt, that on or
about the alleged date, the Defendant had in his possession a
firearm, and that he took and carried away property from the
person or presence of Bobby Richmond without his voluntary
consent, by endangering or threatening his or another person’s
life with the use or threatened use of a firearm, the Defendant
knowing at the time that he was not entitled to take the
property, and intending to deprive that person of its use
permanently, then it would be your duty to return a verdict of
guilty of robbery with a dangerous weapon, or robbery with a
firearm.
However, if you do not so find, or have a reasonable doubt
as to one or more of these things, it would be your duty to
return a verdict of not guilty.
And again, in case number  96-CRS-2909, your verdict sheets
[sic] specifies guilty of robbery with a dangerous weapon of
Bobby Richmond, or not guilty.




Defendant contends this instruction allowed the jury to find defendant
guilty of robbing Richmond if the state proved defendant stole any property
from Richmond’s presence.    According to defendant, this instruction
impermissibly allowed the jury to find defendant guilty of both robberies
based solely on the taking of the motel’s money.
When analyzing jury instructions, we must read the trial court’s
charge as a whole.    State v. Hardy,  353 N.C.  122,  131-32,  540 S.E.2d  334,
342  (2000).    We construe the jury charge contextually and will not hold a
portion of the charge prejudicial if the charge as a whole is correct.    Id.
at  132,  540 S.E.2d at  342.                                                         “‘If the charge presents the law fairly and
clearly to the jury, the fact that some expressions, standing alone, might
be considered erroneous will afford no ground for reversal.’”    State v.
Rich,  351 N.C.  386,  394,  527 S.E.2d  299,  303  (2000)  (quoting State v. Lee,
277 N.C.  205,  214,  176 S.E.2d  765,  770  (1970)).    Furthermore, to constitute
plain error, the challenged instruction must result in a miscarriage of
justice or the probability of a different verdict than the jury would
otherwise have reached.    State v. Wallace,  351 N.C.  481,  527,  528 S.E.2d
326,  355, cert. denied,  ___ U.S.  ___,  148 L. Ed.  2d  498  (2000).
In the present case, when the trial court’s instructions are read as a
whole, they adequately explain the different requirements for each robbery
charge.    In the first paragraph, the trial court explained that defendant
was charged with two counts of robbery with a firearm, one charge for
taking the motel’s property, and one charge for taking Richmond’s property.
Moreover, in the specific instruction concerning Richmond’s robbery, the
trial court stated that defendant must have intended  “to deprive that
person of its use permanently.”                                                       (Emphasis added).    Thus, the trial court
made clear that defendant had to take the motel’s property to be guilty of
the first robbery count and had to take Richmond’s property to be guilty of
the second robbery count.
When read in its entirety, the jury charge fairly presented the law to




the jury.    Because the trial court stated that property belonging to
Richmond must have been taken for defendant to be guilty of robbing him, it
is unlikely a different verdict would have been reached had the
instructions been more explicit or repetitive.    Thus, the instructions did
not amount to plain error.    Defendant’s argument is without merit.
CAPITAL SENTENCING PROCEEDING
[7] Defendant assigns error to the trial court’s submission of the
(e)(4) aggravating circumstance during his capital sentencing procee

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