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IN THE SUPREME COURT OF NORTH CAROLINA
No.  182A01
FILED:  20 DECEMBER  2002
STATE OF NORTH CAROLINA
v.
CHRISTENE KNAPP KEMMERLIN
Appeal as of right pursuant to N.C.G.S.  §  7A-27(a) from
a judgment imposing a sentence of death entered by Frye, J., on
17 October  2000 in Superior Court, Rockingham County, upon a jury
verdict finding defendant guilty of first-degree murder.    On
6 August  2001, the Supreme Court allowed defendant’s motion to
bypass the Court of Appeals as to her appeal of additional
judgments.    Heard in the Supreme Court  9 September  2002.
Roy Cooper, Attorney General, by David Roy Blackwell,
Special Deputy Attorney General, for the State.
Kathryn L. VandenBerg for defendant-appellant.
WAINWRIGHT, Justice.
On  5 April  1999, Christene Knapp Kemmerlin  (defendant)
was indicted for the first-degree murder of her husband, Donald
Wayne Kemmerlin; for conspiracy to commit murder; for
solicitation to commit murder; and for robbery with a dangerous
weapon.    Defendant was tried capitally before a jury at the
18 September  2000 session of Superior Court, Rockingham County.
The jury found defendant guilty of all charges.    Following a
capital sentencing proceeding, the jury recommended a sentence of
death for the first-degree murder, and the trial court entered
judgment in accordance with that recommendation.    The trial court




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also sentenced defendant to consecutive sentences for the other
convictions.    For the reasons discussed herein, we conclude that
the pre-trial issue, jury selection, guilt-innocence phase, and
sentencing proceeding were free of prejudicial error but that the
death sentence was disproportionate.
Evidence presented at trial showed that defendant and
her husband rented a house from Charles A. Davis at  619 Madison
Street in Reidsville, North Carolina.    Davis lived near the
Kemmerlins, at  625 Madison Street.    At around  8:00 p.m. on
24 March  1999, defendant ran into Davis’ trailer screaming that
Wayne had been shot.    Davis directed defendant to use his phone
to call  911.    Davis eventually took over the  911 call, and
defendant returned to her home on foot.    Davis completed the  911
call and drove to the Kemmerlin house.
Once inside the home, Davis observed Wayne Kemmerlin
lying flat on his back on the floor.    Davis checked for a pulse
but could find none.    Defendant called  911 a second time.
Sergeant Darryl M. Crowder of the Rockingham County
Sheriff’s Department was the first to respond to the scene at
8:13 p.m.    After checking the residence to make sure no one else
was present, Sergeant Crowder examined the body and found three
to four gunshot wounds in the lower abdomen and one gunshot wound
to the right forearm.    Defendant told Sergeant Crowder that a
black male had shot her husband.    She described the shooter as
five foot ten inches tall, with a close-cut haircut and large
lips.    Defendant said the shooter was wearing a blue puffy coat




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and blue jeans.    Defendant told Sergeant Crowder that she did not
know the man.
According to defendant, the black male had come to the
door and asked to use the phone because his car broke down.
Defendant let the man in and went to get her husband.    Defendant
returned to the laundry room where she had been washing clothes.
She heard the black male ask her husband what he owed him for
using the phone.    She then heard her husband say  “No” at least
twice.    At that point, she heard shots fired and ran to Davis’
home for help.
Sergeant Crowder found a ski mask in the kitchen but
noted no signs of a struggle.    Sergeant Crowder learned that the
victim’s company truck was missing from the scene.    This truck
was recovered a few hours later, having been abandoned
approximately three to four miles from the Kemmerlin residence.
EMS personnel arrived shortly after Sergeant Crowder.
Defendant asked one of the EMS paramedics if her husband was
“going to make it.”    Although the body was still warm, the victim
was not breathing, had no pulse, and appeared lifeless.    CPR was
administered but was unsuccessful.
Betty Jo Hurt, a nurse on duty in the emergency room at
Annie Penn Hospital, was part of the team attempting to revive
the victim.    Despite their efforts, the victim was pronounced
dead at  8:53 p.m.    According to Hurt, defendant went to view the
body and kept repeating,  “I shouldn’t have let him in.”
Associate Chief Medical Examiner Karen Chancellor
performed an autopsy on the victim’s body on  25 March  1999.




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Doctor Chancellor concluded that gunshot wounds to the chest and
back were the most likely cause of death.
Also on  25 March  1999, the Sheriff’s Department
received a phone call from Cynthia Vaughn Loftis indicating that
defendant should be a suspect in the murder investigation.
Ms. Loftis was concerned that her son, Jerry Loftis, might be in
danger because defendant had been looking for him and he owed
defendant money.
The police interviewed Jerry Loftis and learned that he
had first met defendant through his girlfriend, Dori Gwynn, in
the summer of  1998.    Loftis admitted to beginning a sexual
relationship with defendant at that time.    In August  1998, upon
learning that Loftis sold drugs, defendant gave Loftis money to
buy drugs, sell them at a profit, and share the profit with her.
Defendant also gave Loftis one hundred methadone pills to sell
for her.    Loftis never gave defendant any of the profits from the
sale of drugs.
Defendant told Loftis that her husband was verbally and
physically abusive to her.    On several occasions, defendant asked
Loftis if he knew someone who would kill her husband, Wayne, for
the money she would receive from his insurance policy.    Defendant
told Loftis she would get  $200,000 if Wayne was killed.    When
Loftis told defendant that he did know someone, defendant gave
him  $400.00 or  $500.00 and instructed Loftis that the murder
should be made to look like a robbery.    Loftis, however, used the
money to pay his bills and  “party.”




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Defendant also asked Loftis himself about killing her
husband.    Additionally, she gave Loftis an assault rifle to sell
and use the money to hire someone to kill her husband.    In
October  1998, Loftis was sent to prison, where he remained until
late December  1998.    When defendant learned that Loftis was out
of prison, she began looking for him by contacting his friends
and family members.
Also on  25 March  1999, Special Agent David Hedgecock of
the North Carolina State Bureau of Investigation  (SBI)
interviewed Loftis’ girlfriend, Dori Gwynn.    Gwynn corroborated
Loftis’ earlier statements and told police that defendant had
offered Gwynn and Loftis  $5,000 if they would kill defendant’s
husband.
Following his interview with Gwynn, Agent Hedgecock
interviewed defendant at the Rockingham County Sheriff’s
Department at  7:50 p.m.    Hedgecock advised defendant that she was
not under arrest and could terminate the interview at any time.
Defendant told Hedgecock that she understood she was free to
leave at any time.
Defendant began the interview by describing the events
on the night her husband was killed, reiterating her earlier
statement to police.    The conversation then shifted to a
discussion of defendant’s marriage.    Defendant told Agent
Hedgecock that Wayne had hit her only three times during the
marriage but had pushed her and verbally abused her as well.
According to defendant, Wayne would get drunk and force her to
have sex with him.




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Agent Hedgecock asked defendant about her involvement
with Jerry Loftis.    Defendant acknowledged her sexual
relationship with Loftis but denied that Loftis had anything to
do with Wayne’s death.    Defendant then became visibly upset and
began to cry.    She told Hedgecock that the person who shot Wayne
was a black male named  “Antone” but that she did not know his
last name.
Defendant admitted to approaching Loftis about getting
Wayne killed.    Loftis told her he knew someone who would kill
Wayne for  $1,500.    Defendant gave Loftis various amounts of money
on several occasions, ultimately totaling  $1,500.    She raised
$300.00 more because Loftis said he needed money to buy a gun.
Defendant had no knowledge that Loftis ever tried to find someone
to kill Wayne.    Upon learning that Loftis was out of jail,
defendant began looking for Loftis to get her money back.    She
thought Antone might know where Loftis was.    Accordingly, she met
with Antone and told him that she had given Loftis money to have
Wayne killed and that Loftis had never done anything about it.
Antone told defendant that he would find someone to kill Wayne.
Sometime in March  1999, defendant, bruised from a
beating Wayne had given her, went to Antone’s residence.    Upon
seeing the bruises, Antone became upset and told defendant to
give him money to buy a gun and he would  “handle it.”    Defendant
gave Antone  $150.00 on  22 March  1999 to pay for a gun.
Defendant and Antone agreed that Antone would kill
Wayne the following evening,  23 March  1999, while defendant
attended a candle party.    Antone did not kill Wayne as planned




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but told defendant on  24 March  1999 that he would kill Wayne that
night.
At around  5:45 p.m. on  24 March  1999, defendant paged
Antone and told him she would be leaving work in about fifteen
minutes.    Defendant left work as planned and picked up Antone.
Defendant dropped Antone off near a pawnshop and went to a
tanning salon.    After her tanning appointment, defendant drove to
the Texaco station on Harrison Street in Reidsville, where she
and Antone had planned to meet.    Defendant dropped Antone off at
a business near her house at  7:10 p.m. before driving home.
After a brief conversation with her husband, defendant
began doing laundry.    A short time later, the doorbell rang, and
defendant answered it to find Antone standing there.    Defendant
told Antone,  “No, this ain’t going to work.”    Antone, however,
continued to follow the plan and asked to use the phone because
his car had broken down.    Defendant told investigators that the
rest of the events were the same as she had initially described.
The primary differences were:    she admitted  (1) that she knew the
previously unidentified black male;  (2) that she was involved in
the events leading up to her husband’s shooting; and  (3) that
after the shooting, she knelt beside Wayne’s body and told him,
“I’m sorry.”    Defendant, crying, told the investigators,  “I can’t
believe I did it.”    Defendant told the investigators that she did
not know that Antone was going to rob Wayne and that she had not
spoken with Antone since the shooting.
During the interview, Agent Hedgecock asked defendant
several times if she needed to use the bathroom or wanted




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anything to drink.    Defendant was offered several breaks but
declined.    Defendant’s interview concluded at  10:00 p.m.
Following the interview, defendant remained at the
police station, and at  5:31 a.m. on  26 March  1999, Agent
Hedgecock met with defendant again.    Hedgecock informed defendant
that she was under arrest for the murder of her husband and
advised her of her rights.    Defendant later led police to a
residence where they could find Antone, who was subsequently
identified as William Antone Johnson.
PRE-TRIAL ISSUE
In her first assignment of error, defendant contends
that the trial court erred in denying her motion to suppress the
statement given to SBI special agents on  25 March  1999.
Defendant argues the conditions of the interview constituted a
restraint on her freedom of movement to the degree associated
with formal arrest.    Defendant additionally argues the trial
court erred in admitting her  26 March  1999 statement as the
product of the  25 March  1999 statement.
First, defendant argues her  25 March  1999 statement to
SBI agents was given while she was in custody and should
therefore have been suppressed because she was not given Miranda
warnings.    Defendant did not testify at the suppression hearing
but presented an affidavit in support of her motion.    Defendant
alleged that the interviewer physically touched her with his hand
and knees and otherwise crowded her.    Defendant further alleged
that she was denied permission to talk to her father and believed
she was unable to freely leave.




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At the suppression hearing, the State presented the
testimony of SBI Special Agent David Hedgecock.    Agent Hedgecock
testified that he and Agent Peters began their interview of
defendant at  7:50 p.m. on  25 March  1999 in a small interview room
at the Rockingham County Sheriff’s Department.    Agent Peters sat
behind a desk taking notes, while Hedgecock and defendant sat
face-to-face in chairs in front of the desk.    Agent Hedgecock
began the interview by informing defendant that she was not under
arrest, was free to terminate the interview at any point, and
could leave the Sheriff’s Department at any time she wished.
Defendant told Agent Hedgecock that she understood.    The
interview room was not large.    At some point during the
interview, Agent Hedgecock’s knees touched defendant’s knees and
he placed a hand on her shoulder to comfort her.
Agent Hedgecock further testified that he asked
defendant several times if she wanted anything to drink or needed
to use the bathroom.    Defendant declined to take any breaks
during the interview.    The interview lasted a little over two
hours and concluded at  10:00 p.m.    At the end of the interview,
Agent Hedgecock asked defendant if she would like to be with her
father, who had accompanied her to the station for the interview.
Defendant declined, whereupon Agents Hedgecock and Peters left
the room to consult with other officers.    Defendant was not
placed under arrest at this time, nor was a deputy assigned to
stand guard over her.    Agent Hedgecock later observed defendant
smoking a cigarette while standing with her father in another
part of the building, again not guarded by a deputy.    Defendant




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was not formally placed under arrest until  5:31 a.m. on  26 March
1999, at which time she was advised of her Miranda rights.    The
trial court concluded as a matter of law that  “defendant was not
in custody at the time the defendant made an oral confession to
the agents implicating her in the conspiracy and murder of her
husband.”
Whether an interrogation is conducted while a person is
in custody requires the trial court to reach a conclusion of law,
which is fully reviewable by this Court.    State v. Greene,  332
N.C.  565,  577,  422 S.E.2d  730,  737  (1992).                         “‘[T]he trial court’s
conclusions of law must be legally correct, reflecting a correct
application of applicable legal principles to the facts found.’”
State v. Golphin,  352 N.C.  364,  409,  533 S.E.2d  168,  201  (2000)
(quoting State v. Fernandez,  346 N.C.  1,  11,  484 S.E.2d  350,  357
(1997)), cert. denied,  532 U.S.  931,  149 L. Ed.  2d  305  (2001).
In determining whether an individual is in custody,
this Court decides, based on the totality of circumstances,
whether there was a  “formal arrest or restraint on freedom of
movement” of the degree associated with a formal arrest.    Oregon
v. Mathiason,  429 U.S.  492,  495,  50 L. Ed.  2d  714,  719  (1977),
quoted in State v. Hoyle,  325 N.C.  232,  241,  382 S.E.2d  752,  756
(1989); see also State v. Gaines,  345 N.C.  647,  662,  483 S.E.2d
396,  405  (“[T]he definitive inquiry is whether there was a formal
arrest or a restraint on freedom of movement of the degree
associated with a formal arrest.”), cert. denied,  522 U.S.  900,
139 L. Ed.  2d  177  (1997).    In the present case, defendant was
advised before the interview began that she was not under arrest




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and could leave at any time.    At the time these instructions were
given to her, defendant, by her own admission, understood them.
At no time during the interview was defendant restrained in her
freedom of movement.    She had ample opportunity to interrupt the
interview to get something to eat or drink, or to use the
bathroom, but declined to do so.    Moreover, at the conclusion of
the interview, defendant was not guarded by law enforcement
officers but instead was allowed to move freely throughout the
Sheriff’s Department.    We therefore find no error in the trial
court’s conclusion that defendant was not in custody at the time
of her oral statement to investigators on  25 March  1999.
Defendant also argues that the handwritten statement
resulting from the interview contemporaneous with her arrest on
26 March  1999 should have been suppressed along with the  25 March
1999 statement, because it was simply another version of the
25 March  1999 statement that defendant contends should have been
suppressed.    We agree that this statement was a mere reduction to
writing by Agent Hedgecock of defendant’s earlier statement, with
a few minor modifications.    However, because we have determined
that the  25 March  1999 statement was properly admitted, we
similarly conclude the handwritten statement was admissible.
Defendant additionally contends that the handwritten
statement was involuntary.    Defendant concedes that the trial
court found as fact in the suppression hearing that defendant
never indicated that she was tired or under duress, never refused
to answer any of Agent Hedgecock’s questions, and never requested
a lawyer.    Nonetheless, defendant asserts that the trial court’s




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findings were incomplete because they contained no findings as
to:                                                                       (1) the length of time defendant had been without sleep,
(2) the length of time she had been either waiting or under
interrogation at the Sheriff’s Department, and  (3) her experience
with the criminal justice system.    Defendant further notes that
the trial court failed to explicitly conclude that the statement
was voluntary.
A trial court’s conclusion regarding the voluntariness
of a defendant’s statement is fully reviewable on appeal.    State
v. Hardy,  339 N.C.  207,  222,  451 S.E.2d  600,  608  (1994).    Upon
review, this Court considers the totality of the circumstances.
Id.    The defendant’s familiarity with the criminal justice
system, length of interrogation, and amount of time without sleep
are merely a few of many factors to be considered.    Id.    Other
considerations include whether defendant was in custody, whether
her Miranda rights were violated, whether she was held
incommunicado, whether there were threats of violence, whether
promises were made to obtain the confession, the age and mental
condition of defendant, and whether defendant had been deprived
of food.    State v. Hyde,  352 N.C.  37,  45,  530 S.E.2d  281,  288
(2000), cert. denied,  531 U.S.  1114,  148 L. Ed.  2d  775  (2001);
State v. Patterson,  146 N.C. App.  113,  123,  552 S.E.2d  246,  254,
disc. rev. denied,  354 N.C.  578,  559 S.E.2d  548  (2001).    The
presence or absence of any one of these factors is not
determinative.    State v. Barlow,  330 N.C.  133,  141,  409 S.E.2d
906,  911  (1991).




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In the present case, the totality of the circumstances
clearly demonstrates that the handwritten statement was made
voluntarily.    Defendant was advised of her Miranda rights and
chose to waive them.    At no point in time was defendant
threatened or coerced.    Defendant never indicated that she was
tired or wished to terminate the interview, nor did she request
the assistance of counsel.    Although she remained at the
Sheriff’s Department following the conclusion of her confession,
defendant was never interrogated further.    Indeed, the record
reveals she had no contact with investigators from the conclusion
of her interview at  10:00 p.m. until the time she was arrested at
5:31 a.m. the next day.
We further note that while the trial court did not
explicitly find that the handwritten statement was made
voluntarily, the court did find that defendant  “freely,
knowingly, and voluntarily waived” her Miranda rights.    The trial
court further found that defendant’s handwritten statement, made
after the Miranda warnings,  “[did] not violate her constitutional
right of the United States  []or the North Carolina constitution.”
We conclude that the trial court properly found that defendant’s
handwritten statement was voluntary.
In the alternative, defendant contends that if the
handwritten statement made on  26 March  1999 was properly
admitted, the admission of her earlier statement on  25 March  1999
was prejudicial.    Defendant alleges that subtle differences in
the two statements affected the jury’s specific findings, as well
as their overall impression of defendant.    As her only example,




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defendant points to statements concerning spousal abuse.
Defendant notes that the  25 March  1999 statement revealed that
Wayne had hit defendant only three times during their marriage.
The  26 March  1999 statement reads:                                 “[M]y present husband Wayne
Kemmerlin was also physically, verbally, and sometimes sexually
abusive to me.    He sometimes pushed me, or hit me in the face,
and often made me have sex with him when he was drunk.”
According to defendant, if even one juror had believed her
contention that spousal abuse, not pecuniary gain, motivated the
killing, she would not have received a death sentence.
We note that the trial court admitted into evidence
both the  25 March and the  26 March statements.    Additionally,
defendant testified at the sentencing proceeding in greater
detail concerning the alleged physical and sexual abuse.    The
jurors were given several opportunities to hear evidence
concerning spousal abuse and were able to make their own
conclusions based on all of the evidence.    We fail to see how
defendant suffered any prejudice on this issue.
This assignment of error is overruled.
JURY SELECTION
By assignment of error, defendant argues that the trial
court erred in preventing defendant from exploring whether a
prospective juror could consider a life sentence for premeditated
murder given her personal knowledge of early release from life
sentences for murder.    Defendant contends that she was unable to
adequately inquire into a potential bias from the juror’s prior
associations with two murders in which the defendants were




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released early.    Defendant further argues that the trial court’s
refusal to allow her to question the prospective juror and to
clarify the law deprived all prospective jurors of relevant and
essential information necessary for a reliable sentencing
determination, thereby creating risk of the arbitrary and
capricious imposition of the death penalty.    We find no error in
the trial court’s actions.
During voir dire, prospective juror Crystal Scales
related prior associations with two separate murders in which the
defendant was released after serving only a few years.
Prospective juror Scales informed the court that her aunt had
been murdered by the aunt’s husband, who served only a few years
in jail.    Scales told the court that she did not believe the
husband should have received the death penalty but  “was in shock
when he got out so soon.”    In addition, when prospective juror
Scales was a teenager, a close friend was murdered.    Scales
informed the court that she felt at the time that the murderer
should have received the death penalty, but the murderer instead
served less than five years.
Defendant attempted to ask prospective juror Scales if
she understood what life imprisonment without the possibility of
parole meant but was overruled by the trial court.    Scales was
ultimately passed by all counsel and sat on the jury.    Defendant
now contends that prospective juror Scales was not adequately
examined by the trial court as to her ability to be an impartial
juror in this case.




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Trial judges are permitted broad discretion in
regulating jury voir dire.    State v. Artis,  325 N.C.  278,  295,
384 S.E.2d  470,  479  (1989), sentence vacated on other grounds,
494 U.S.  1023,  108 L. Ed.  2d  604  (1990); State v. Johnson,  317
N.C.  343,  382,  346 S.E.2d  596,  618  (1986).    To demonstrate
reversible error, a defendant must show that the court abused its
discretion in regulating jury selection and that the defendant
was prejudiced thereby.    State v. Soyars,  332 N.C.  47,  56,  418
S.E.2d  480,  486  (1992).
During voir dire,  “the subject of parole eligibility
and the meaning of  ‘life imprisonment’ are irrelevant to the
issues to be determined during the sentencing proceeding.”    State
v. Lee,  335 N.C.  244,  268,  439 S.E.2d  547,  559, cert. denied,  513
U.S.  891,  130 L. Ed.  2d  162  (1994); see also State v. McNeil,  324
N.C.  33,  44,  375 S.E.2d  909,  916  (1989), sentence vacated on
other grounds,  494 U.S.  1050,  108 L. Ed.  2d  756  (1990).
Accordingly, we have found no abuse of discretion where trial
courts refuse to allow defendants to question prospective jurors
concerning misconceptions about parole.    Lee,  335 N.C. at  268,
439 S.E.2d at  559; McNeil,  324 N.C. at  44,  375 S.E.2d at  916.
As was the case in Lee and McNeil, we find no abuse of
discretion here in the trial court’s refusal to allow defendant
to question prospective juror Scales.    The trial court verified
that all prospective jurors, including Scales, could and would
impartially consider the evidence regarding mitigating and
aggravating circumstances.    Additionally, defendant was allowed
to ask the prospective jurors if they understood  “that some




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first-degree murders don’t deserve the death penalty.”
Prospective juror Scales also informed the court that  (1) she
understood that not all first-degree murders merit death,  (2) she
did not feel that her prior associations with murder would affect
her ability to be fair and impartial in defendant’s case, and
(3) she would not automatically vote for the death penalty upon
conviction.
Finally, during the penalty phase, the judge instructed
the jury, of which Scales was a member, that upon a
recommendation of a sentence of life imprisonment,  “the Court
[would] impose a sentence of life imprisonment without parole.”
This instruction sufficiently cures any potential misconception
regarding life imprisonment held by prospective juror Scales.
Similarly, the trial court’s instruction also corrected any
perceived prejudicial impression in the minds of other jurors who
heard prospective juror Scales’ comments during voir dire.    These
instructions advised all jurors that life imprisonment without
parole was an acceptable punishment for some first-degree murders
and did not carry any opportunity for parole or early release.
This assignment of error is overruled.
In her next assignment of error, defendant argues the
trial court erred in excusing for cause prospective jurors Connie
Williams, Mark Young, and Janet New on the grounds that each
would be unable to return a sentence of death.    Defendant further
assigns error to the trial court’s denial of defendant’s request
to rehabilitate prospective jurors Williams and Young.




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The proper standard for determining whether a
prospective juror can be excluded for cause because of the
juror’s views on capital punishment is whether those views would
“‘prevent or substantially impair the performance of his duties
as a juror in accordance with his instructions and his oath.’”
Wainwright v. Witt,  469 U.S.  412,  420,  83 L. Ed.  2d  841,  849
(1985)  (quoting Adams v. Texas,  448 U.S.  38,  45,  65 L. Ed.  2d
581,  589  (1980))  (emphasis omitted); see also State v. Gregory,
340 N.C.  365,  394,  459 S.E.2d  638,  654  (1995), cert. denied,  517
U.S.  1108,  134 L. Ed.  2d  478  (1996); State v. Syriani,  333 N.C.
350,  369,  428 S.E.2d  118,  128, cert. denied,  510 U.S.  948,  126 L.
Ed.  2d  341  (1993).    Challenge for cause must be based on more
than the prospective juror’s  “‘general objections to the death
penalty or expressed conscientious or religious scruples against
its infliction.’”    Gregory,  340 N.C. at  394,  459 S.E.2d at  654
(quoting Witherspoon v. Illinois,  391 U.S.  510,  522,  20 L. Ed.  2d
776,  784-85  (1968)).
However,  “a prospective juror’s bias for or against the
death penalty cannot always be proven with unmistakable clarity.”
State v. Miller,  339 N.C.  663,  679,  455 S.E.2d  137,  145, cert.
denied,  516 U.S.  893,  133 L. Ed.  2d  169  (1995).                      “[T]here will be
situations where the trial judge is left with the definite
impression that a prospective juror would be unable to faithfully
and impartially apply the law.”    Wainwright,  469 U.S. at  425-26,
83 L. Ed.  2d at  852.    Consequently, we ordinarily  “defer to the
trial court’s judgment as to whether the prospective juror could
impartially follow the law.”    State v. Morganherring,  350 N.C.




-19-
701,  726,  517 S.E.2d  622,  637  (1999), cert. denied,  529 U.S.
1024,  146 L. Ed.  2d  322  (2000).                                        “The trial court’s decision to
excuse a juror is discretionary and will not be disturbed absent
an abuse of discretion.”    State v. Blakeney,  352 N.C.  287,  299,
531 S.E.2d  799,  810  (2000), cert. denied,  531 U.S.  1117,  148 L.
Ed.  2d  780  (2001).
Additionally, trial courts should be accorded great
deference in their refusal to permit rehabilitation of a
prospective juror.    State v. Cummings,  326 N.C.  298,  307,  389
S.E.2d  66,  71  (1990).                                                   “[A] defendant may not  ‘rehabilitate a
juror who has expressed unequivocal opposition to the death
penalty in response to questions propounded by the prosecutor and
the  [sentencing] court.’”    State v. Smith,  352 N.C.  531,  545,  532
S.E.2d  773,  783  (2000)  (quoting Cummings,  326 N.C. at  307,  389
S.E.2d at  71), cert. denied,  532 U.S.  949,  149 L. Ed.  2d  360
(2001).
In the present case, the prosecutor questioned
prospective juror Williams as follows:
Q.    Miss Williams, you indicated you had
beliefs regarding the death penalty one way
or the other?
A.    I don’t feel that I could honestly put
somebody to death.
Q.    How long have you held that belief?
A.    I’ve always felt that way.
Q.    On account of those beliefs and
feelings, would you return a sentence of
death even though the State proved things
required of it beyond a reasonable doubt?




-20-
A.    If it was beyond a reasonable doubt,
then I probably could, but it would have to
be very  --
Q.    You understand, Ma’am, that in any
criminal case that the State is prosecuting
that our burden of proof is beyond a
reasonable doubt?
A.    Right.
Q.    Now, are you saying that you would hold
the State to a higher burden of proof which
is the law of this state, beyond a reasonable
doubt, because this is a death penalty case?
A.    I would hate to make that judgment is
what I’m saying in regard[] to a person.    I
could not make that judgment in regard[] to a
living person.
Q.    With regard to the imposition of the
death penalty?
A.    Right.
Q.    Would your views on the death penalty
prevent or substantially impair the
performance of your duties as a juror in
accordance with the instructions given by the
Court and your oath?
A.    No.
Q.    They would not?
A.    Right.
Q.    So, you would if the State proved what
is required beyond a reasonable doubt, you’d
be able to impose the death penalty?
A.    If you proved it beyond a reasonable
doubt.
Q.    And would you hold the State to a higher
burden as to erase all doubt in your mind?
A.    I’d have to have it all erased.




-21-
At this point, the prosecutor asked to excuse Williams for cause,
and both the court and the prosecutor questioned her further:
THE COURT:    Let me ask you, Miss
Williams, if you have your own definition of
what reasonable doubt is and then you heard
the Court’s definition of reasonable doubt.
Would you set aside what your feelings are
and what your definition is and follow the
Court’s instructions?
MISS WILLIAMS:    Well, yes, I could do
that.
Q.    Now, you have your own views on the
death penalty?
A.    Yes, sir.
Q.    And what are those views?
A.    I believe in the death penalty.    I feel
like I’m contradicting myself.    I do believe
in the death penalty.    I do feel like if you
committed a crime and you were sentenced to
that, I agree that there should be that type
of punishment.    I’m just saying for me to sit
on a jury as a juror and decide whether
somebody lived or died, I could not do that
myself.
Q.    So, would it be fair to say that because
of your feelings on the death penalty,
regardless of the circumstances the State
might prove to you, you would not vote in
favor of the death penalty?
A.    I could not.
Q.    And would your views of the death
penalty prevent or substantially impair the
performance of your duties as a juror in
accordance with the instructions and your
oath?
A.    Yes, I guess it would.
[PROSECUTOR]:    I offer her for cause.




-22-
THE COURT:    I’m going to ask you one
more question.    If it came time to pronounce
the verdict that the defendant was to receive
the death penalty, if it came to that point
and you had to stand up by yourself with all
the other jurors sitting there, could you say
the defendant is to receive a sentence of
death?
MISS WILLIAMS:    I could not do that.
Similarly, prospective juror Young was questioned by
the prosecutor as follows, following an explanation of sentencing
laws:
Q.    Now knowing that, do you have any
religious or moral objections against the
death penalty?
A.    Well, I agree it’s not right to kill
someone.    I’m not sure I agree that it’s any
better for us to kill.
Q.    Would your views impede or hinder your
ability to return a verdict of death?
A.    It’s a possibility.
Q.    It’s a possibility?
A.    Uh-huh.
Q.    Are you saying that no matter what the
evidence or no matter what the circumstances
present in this particular case that you
would not be able to return a verdict of
death if that were required under the law and
the evidence that we presented?
A.    It would be a difficult one.
Q.    Could you do it?
A.    I really don’t know that.
Q.    Do you think you’d have the strength to
come into the courtroom if there was a
unanimous decision of the jury that this
defendant be sentenced to death and the other
eleven are still sitting, as you are now,




-23-
that you could stand up and say that she
should be sentenced to death by yourself?
A.    I don’t think I could if it was required
of me.
Q.    It wouldn’t be your decision only.
Don’t misunderstand.    Everyone else would
have to stand up, but individually we’d have
to go down the row.    Could you do that?
A.    I don’t think, at this point, I don’t
think I could.
Q.    Would you have to hear the evidence and
the facts in the case before you could make a
decision on that?
A.    I just don’t think that I would feel
right with myself if I did personally.
Q.    Would your views on the death penalty
that you stated a moment ago  -- I don’t want
to put words in your mouth.  -- prevent or
impair the duties of your performance as a
juror in accordance with the instructions as
given to you by his Honor and the oath as a
juror?
A.    I think it would impair.
Prospective juror Young was then offered for cause, and the court
inquired of him further as follows:
THE COURT:    I’m going to go back.    Let
me ask you this:    Are you saying that if
you’re required to sit as a juror in this
case and if the juror is required to make a
sentence recommendation, that you have
because of your personal beliefs against the
death penalty, that you’ve already made up
your mind to vote for life without parole and
against the death penalty no matter what the
evidence showed?
MR. YOUNG:                                                          (No reply).
THE COURT:    There is no right or wrong
answer.




-24-
MR. YOUNG:    Yeah.    I think yeah.    I
think that’s true.
THE COURT:    Okay, Let me ask you this:
I take it, then, that due to your personal,
moral, or religious beliefs that there are no
circumstances under which you as a juror
could ever consider voting in favor of a
sentence of death?
MR. YOUNG:    I would say so.
THE COURT:    Is that a yes?
MR. YOUNG:    Yes.    Yes.
THE COURT:    So, then is your view in
opposition to the death penalty such that it
would prevent or substantially impair your
ability to perform your sworn duties as a
juror?
MR. YOUNG:    Yes, sir.
Finally, defendant argues prospective juror New should
not have been excused for cause.    New was questioned in part as
follows:
[PROSECUTOR]:    And would you
automatically vote against the sentence of
death without any regard to any evidence that
developed at trial?
MISS NEW:    I would not automatically do
that, but it would be very hard for me to do
that.    I would not automatically do it.    Like
I said, I would do my duty.    I would try to
look at it as objectively as possible.
[PROSECUTOR]:    And if the defendant is
convicted of first-degree murder, would you
be able to consider as his Honor instructs
you the death penalty under our law?
MISS NEW:    I would be able to consider
it.
[PROSECUTOR]:    Would you be able to
consider, as his Honor instructs you, life
imprisonment without parole under our law?




-25-
MISS NEW:    Yes.
[PROSECUTOR]:    And would you
automatically vote for a sentence of life
imprisonment without parole?
MISS NEW:    I would be inclined toward
life  .  .  .
Following the prosecutor’s first motion for cause, New
was questioned further by both the trial court and defense
counsel:
THE COURT:    Let me ask you this:    Could
you set aside whatever your personal beliefs
are against it and follow the law as given
you by the Court, listen to the arguments of
counsel, and then listen to the evidence and
make your decision based on that?
MISS NEW:    I would attempt to.    To say
that my personal beliefs would not filter in
it, I’m saying that that would not happen,
but I would try.
.  .  . I mean, I feel the death penalty
is wrong, but all I can do is try to consider
it.    I mean, I feel it’s wrong, but I’ll try
to do what I’m supposed to do.
THE COURT:    Yes, ma’am.
[DEFENSE COUNSEL]:    If the jury were to
unanimously find that the defendant was
guilty of first-degree murder, you
understand, then you would go to a second
phase?
MISS NEW:    Right.
[DEFENSE COUNSEL]:    And after hearing
certain evidence and hearing the law that the
Judge tells you, he’ll instruct you as to
what the law is concerning capital punishment
versus life imprisonment without parole.    Um,
do you believe that, that first the jury
having found the defendant unanimously
guilty, guilty of first-degree murder, if
they do that, then going to the sentencing
phase and listening to evidence and listening




-26-
to the judge’s instructions, would you
automatically vote against the death penalty
simply because of your belief in opposition
to the death penalty?    And, remember, there
is no right or wrong answer.
MISS NEW:    I mean, I haven’t heard this
situation on this case.    I would be inclined
to vote against the death penalty.    I just
don’t know.
.  .  . I don’t think I could put my
personal feelings aside.    I could try.    I
think it’s a very personal decision.    I mean
it’s a very personal decision to make about
somebody and their life.
Ultimately, the trial court excused prospective juror New for
cause with the following comments:
THE COURT:                                                       .  .  . This juror is excused.
That as a reason of conscience, regardless of
the facts and circumstances, she’ll be unable
to render a verdict with respect to the
charge in accordance with  15A-1212(b).
Further her views concerning the death
penalty would prevent or substantially impair
her duty in the performance of a juror in
accordance with the juror’s oath.
Once prospective juror New was dismissed, the trial court made
the following additional comments:
THE COURT:                                                       .  .  . Just for the record,
the Court will note that the Court observed
the demeanor and responses to both the
State’s inquiry, the Court’s inquiry, and the
defendant’s inquiry, that the juror Miss New
appeared to be emotional.    I also inquired on
the responses and could not tell from the
Court’s questions or State[’s] and
defendant’s questions, but she appeared that
maybe  [we] believed that she was lying and I
told her that that was not the case.
In light of that, her answers, that
although her answers appeared to be
equivocal, and ambiguous, the Court
determined that she would be excused for




-27-
cause based on her views against the death
penalty and notes the objection and exception
on the record and excused the juror in
accordance with the Court’s findings.
Defendant contends that prospective jurors Williams and
Young gave ambiguous or conflicting responses that should have
been clarified prior to the prospective jurors’ excusals.
Defendant also asserts that the prosecutor’s and the trial
court’s questioning was insufficient to determine whether the
jurors were qualified and asserts that defense counsel was
entitled to further questioning.    With regard to prospective
juror New, defendant contends that the trial court incorrectly
found she was unable to return a verdict of death given her
views, as defendant contends that New gave acceptable answers to
the death-qualification questions.    Defendant therefore contends
that the excusal of prospective jurors Williams, Young, and New
violated defendant’s constitutional right to a fair and impartial
jury under the Sixth and Fourteenth Amendments to the United
States Constitution.
With regard to prospective jurors Williams and Young,
we note that  “[a] prospective juror is properly excused for cause
when his answers on voir dire concerning his attitudes toward the
death penalty, although equivocal, show when considered
contextually that regardless of the evidence he would not vote to
convict the defendant if conviction meant the imposition of the
death penalty.”    State v. Barfield,  298 N.C.  306,  324,  259 S.E.2d
510,  526  (1979), cert. denied,  448 U.S.  907,  65 L. Ed.  2d  1137
(1980); see also State v. Simmons,  286 N.C.  681,  688-89,  213
S.E.2d  280,  286  (1975), death sentence vacated,  428 U.S.  903,  49




-28-
L. Ed.  2d  1208  (1976); State v. Avery,  286 N.C.  459,  464,  212
S.E.2d  142,  149  (1975), death sentence vacated,  428 U.S.  904,  49
L. Ed.  2d  1209  (1976).    Although prospective jurors Williams and
Young were both initially somewhat hesitant to express their
views on capital punishment, ultimately both prospective jurors
explicitly told the court that their views on the death penalty
would prevent or substantially impair the performance of their
duties as a juror.    See Wainwright,  469 U.S. at  420,  83 L. Ed.  2d
at  849.    Prospective juror Williams stated that she could not
vote for the death penalty, as it would violate her personal
views on the death penalty.    Likewise, prospective juror Young
told the court that there were no circumstances under which he
could ever consider voting in favor of a sentence of death.
These statements represent an unmistakable commitment to
automatically vote against the death penalty, regardless of the
facts and circumstances which might be presented.    Witherspoon,
391 U.S. at  522 n.21,  20 L. Ed.  2d at  785 n.21.    Accordingly, the
trial court properly excused prospective jurors Williams and
Young and denied defendant’s requests to rehabilitate them.
With regard to prospective juror New, we note that New
never explicitly stated that her views regarding the death
penalty would  “prevent or substantially impair the performance of
[her] duties as a juror.”    Wainwright,  469 U.S. at  420,  83 L. Ed.
2d at  849.    Nonetheless, prospective juror New consistently
stated that she was inclined to vote for life imprisonment
without parole.    New indicated to the court that she would try to
consider imposition of the death penalty but admitted that her




-29-
personal beliefs might affect her decision.    We again reiterate
our deference to a trial court’s judgment regarding a prospective
juror’s impartiality, as the trial court is able to observe a
prospective juror’s demeanor and behavior.    Id. at  425-26,  83 L.
Ed.  2d at  852-53; Morganherring,  350 N.C. at  726,  517 S.E.2d at
637.    Based on its own observations, the trial court found that
prospective juror New was emotional and believed that the court
felt she was lying.    Given the court’s observations of
prospective juror New, her clear inclination against the death
penalty, and her uncertainty as to her ability to refrain from
allowing her personal views to affect her responsibilities as a
juror, we conclude that the trial court properly excused
prospective juror New for cause.
This assignment of error is overruled.
GUILT-INNOCENCE PHASE
In her next assignment of error, defendant contends the
trial court erred in failing to intervene ex mero motu to
prohibit the prosecutor’s statements during closing arguments
that the jury would not have heard defendant’s confession unless
the trial court had determined it was properly taken and
reliable.    We disagree.
In capital cases, counsel is permitted wide latitude in
arguing to the jury and may argue facts in evidence and all
reasonable inferences therefrom.    State v. Sanderson,  336 N.C.  1,
15,  442 S.E.2d  33,  42  (1994).    The control of jury arguments is
within the discretion of the trial court and will not be reversed
unless the remarks are  “clearly calculated to prejudice the jury




-30-
in its deliberations.”    State v. Johnson,  298 N.C.  355,  369,  259
S.E.2d  752,  761  (1979).    The Court in Johnson also noted
the impropriety of the argument must be gross
indeed in order for this Court to hold that a
trial judge abused his discretion in not
recognizing and correcting ex mero motu an
argument which defense counsel apparently did
not believe was prejudicial when he heard it.
Id.
In the present case, the prosecutor argued in his
closing as follows:
Now, in moving to her statement, before
I say one thing about her statement, I’ll say
this:    I’ll argue and contend to you that if
there were anything, one thing wrong with the
way that statement was taken or the contents
of that statement, you would have heard it.
You wouldn’t have heard that statement.
Nothing’s wrong with that statement.    If
there was something wrong with the statement
or the way it was taken, you would not have
heard it.    It would never have gotten before
you.    There was nothing wrong with it.
Nothing.
Defendant contends this argument is analogous to the prosecutor’s
argument in State v. Allen, in which this Court held that the
prosecutor’s statements during closing arguments violated
N.C.G.S.  §  15A-1230(a) because they placed prejudicial matters
before the jury.    See State v. Allen,  353 N.C.  504,  511,  546
S.E.2d  372,  376  (2001); see also N.C.G.S.  §  15A-1230(a)  (2001)
(providing limitations on closing arguments to a jury).    In the
instant case, defendant argues that the trial court’s failure to
intervene had the same effect as if the trial court had
explicitly expressed the opinion, thus leaving the jury with the
impression that it need not consider defendant’s contentions that
details in the statement were inaccurate.    Defendant further




-31-
asserts that this impression could have affected the jury’s
findings regarding premeditation and conspiracy, resulting in a
gross impropriety and abuse of discretion that could have
affected the jury’s determination at the guilt-innocence phase.
Defendant’s reliance on Allen is misplaced.    In Allen,
the prosecutor stated during his closing arguments as follows:
We told you in the beginning we didn’t have
an eyewitness, but we do have an eyewitness,
we have Maria Santos.    She’s an eyewitness in
this case and she spoke through you--to you
through the words of Rafael Barros who talked
to her that night.    She described what she
saw, how many people entered her house.    And
you heard her words through Officer Barros,
because the Court let you hear it, because
the Court found they were trustworthy and
reliable.  .  .                                                           .    If there had been anything
wrong with that evidence, you would not have
heard that.
Id. at  508,  546 S.E.2d at  374  (emphasis added).    The prosecutor
in Allen explicitly informed the jury of the trial court’s
opinion regarding the trustworthiness and reliability of the
admitted statements.    Id. at  509,  546 S.E.2d at  375.    On appeal,
this Court determined the statement violated N.C.G.S.  §  15A-1222,
which forbids the trial court from  “‘express[ing] during any
stage of the trial, any opinion in the presence of the jury on
any question of fact to be decided by the jury.’”    Id. at  510-11,
546 S.E.2d at  375  (quoting N.C.G.S.  §  15A-1222  (1999)).
Unlike the prosecutor in Allen, the prosecutor in the
present case did not indicate to the jury that the trial court
had found defendant’s statement trustworthy or reliable.    No
mention was made of any evidentiary findings.    The prosecutor
simply reminded the jury that no evidence could be presented to




-32-
them without a determination that it was proper for them to hear.
Whether the statement was trustworthy and credible remained a
fact for the jury to decide.
Allen is also distinguishable from the present case
because defense counsel in Allen immediately objected to the
prosecutor’s statements.    See id. at  508,  546 S.E.2d at  374.    By
overruling the defendant’s objection, the trial court reinforced
and ratified the prosecutor’s argument.    In the present case,
defendant made no objection.
Defendant contends that the prosecutor’s statements to
the jury created extreme prejudice because defendant challenged
specific details of her statement to SBI Special Agents Hedgecock
and Peters in an attempt to create reasonable doubt.    We find no
such prejudice.    Defendant was allowed to present evidence that
the agents omitted portions of her statement and that the
statement was taken while defendant was tired and in a coercive
environment.    The prosecutor never implied that the trial court
rejected defendant’s attacks on the statement or found the
statement somehow lacking.    The State merely fulfilled its duty
“to strenuously pursue the goal of persuading the jury that the
facts of the particular case at hand warrant imposition of the
death penalty.”    State v. Green,  336 N.C.  142,  188,  443 S.E.2d
14,  41, cert. denied,  513 U.S.  1046,  130 L. Ed.  2d  547  (1994).
Defendant has failed to show us how the prosecutor’s comments
infected the trial with unfairness and thus rendered the
conviction fundamentally unfair.    See State v. Rose,  339 N.C.




-33-
172,  202,  451 S.E.2d  211,  229  (1994), cert. denied,  515 U.S.
1135,  132 L. Ed.  2d  818  (1995).
This assignment of error is overruled.
Defendant next assigns error to the trial court’s
denial of her motion to dismiss the charge of robbery with a
dangerous weapon.    Defendant contends that because the State
failed to sufficiently prove the element of intent to deprive,
her conviction for armed robbery should be vacated.
When considering a motion to dismiss, the trial court
must determine whether  “there is substantial evidence of each
essential element of the crime.”    State v. Call,  349 N.C.  382,
417,  508 S.E.2d  496,  518  (1998).    We have defined substantial
evidence as that amount of relevant evidence necessary to
persuade a rational juror to accept a conclusion.    State v.
Frogge,  351 N.C.  576,  584,  528 S.E.2d  893,  899, cert. denied,  531
U.S.  994,  148 L. Ed.  2d  459  (2000).    In ruling on a motion to
dismiss, the trial court is required to view the evidence in the
light most favorable to the State, making all reasonable
inferences from the evidence in favor of the State.    State v.
Lucas,  353 N.C.  568,  581,  548 S.E.2d  712,  721  (2001).    Moreover,
“[c]ircumstantial evidence may withstand a motion to dismiss and
support a conviction even when the evidence does not rule out
every hypothesis of innocence.”    State v. Stone,  323 N.C.  447,
452,  373 S.E.2d  430,  433  (1988); see also Frogge,  351 N.C. at
585,  528 S.E.2d at  899.
With regard to the charge of robbery with a dangerous
weapon, the State was required to prove  “(1) an unlawful taking




-34-
or an attempt to take personal property from the person or in the
presence of another,  (2) by use or threatened use of a firearm or
other dangerous weapon,  (3) whereby the life of a person is
endangered or threatened.”    Call,  349 N.C. at  417,  508 S.E.2d at
518; see also N.C.G.S.  §  14-87(a)  (2001).    The State must also
demonstrate that the defendant had the intent to deprive the
owner of his property at the time of taking.    State v.
Richardson,  308 N.C.  470,  474,  302 S.E.2d  799,  802  (1983).
Intent may be inferred by demonstrating that defendant did not
intend to return the property and was indifferent as to whether
the owner ever recovered the property.    State v. Smith,  268 N.C.
167,  172,  150 S.E.2d  194,  200  (1966).
The State’s theory in the present case was that
defendant acted in concert with Antone Johnson to take her
husband’s work truck from her residence.    Defendant points to the
lack of direct evidence regarding Johnson’s intentions when he
took the truck.    Defendant argues instead that because the truck
was abandoned in plain view, close to the residence, where it was
likely to be found, Johnson lacked the total indifference to the
owner’s right to recover the truck that would be necessary to
support an inference of intent to deprive.    Instead, defendant
contends that the evidence supports only two intentions:    that
Johnson took the truck to make the crime scene appear like a
robbery and that Johnson used the truck to get away from the
crime scene to a place where he could safely escape.    Defendant
contends these intentions are insufficient to support a
conviction for robbery with a dangerous weapon.




-35-
Viewed in the light most favorable to the State, the
evidence shows that defendant and Johnson conspired to make the
crime scene look like a robbery.    Johnson drove off in the
victim’s truck after killing defendant’s husband, abandoning the
vehicle three miles from the Kemmerlin residence.    Law
enforcement officers later recovered the keys to the vehicle in
nearby woods.
As defendant concedes in her brief, the intent to
permanently deprive need not be established by direct evidence
but can be inferred from the surrounding circumstances.    See
State v. Barts,  316 N.C.  666,  690,  343 S.E.2d  828,  843-44  (1986).
We have also noted that the abandonment of a vehicle, regardless
of how near the abandonment is to the scene of the crime, places
it  “beyond  [a defendant’s] power to return the property and shows
a total indifference as to whether the owner ever recovers it.”
Id.; see also State v. Mann,  355 N.C.  294,  304,  560 S.E.2d  776,
783  (holding that where a defendant abandoned a vehicle in a
subdivision near where the victim’s body was found, there was
sufficient evidence of intent to permanently deprive the owner of
the vehicle), cert. denied,  ___ U.S.  ___,  ___ L. Ed.  2d  ___
(Nov.  4,  2002)  (No.  02-6059).    Here, the evidence that Johnson
took the vehicle and subsequently abandoned it near the crime
scene was sufficient to show an intent to permanently deprive the
victim of his property.    Accordingly, we hold that the trial
court did not err in denying defendant’s motion to dismiss the
robbery charge.
This assignment of error is overruled.




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In another assignment of error, defendant contends the
trial court erred in failing to vacate the convictions of
solicitation to commit murder and conspiracy to commit murder.
Defendant asserts that both convictions merge with the conviction
for first-degree murder by acting in concert and that punishment
for both crimes violates double jeopardy.    We hold that the
crimes do not merge with the first-degree murder conviction.
The Double Jeopardy Clauses of both the United States
Constitution and the North Carolina Constitution prohibit
multiple punishment for the same offense.    State v. Gardner,  315
N.C.  444,  451,  340 S.E.2d  701,  707  (1986); see also U.S. Const.
amend. V; N.C. Const. art. I,  §  19.    North Carolina has adopted a
definitional test for determining whether a crime is in fact a
lesser offense that merges with the greater offense.    State v.
Weaver,  306 N.C.  629,  635,  295 S.E.2d  375,  378-79  (1982),
overruled on other grounds by State v. Collins,  334 N.C.  54,  61,
431 S.E.2d  188,  193  (1993); State v. Westbrooks,  345 N.C.  43,  56,
478 S.E.2d  483,  491  (1996).                                            “[A]ll of the essential elements of
the lesser crime must also be essential elements included in the
greater crime.    If the lesser crime has an essential element
which is not completely covered by the greater crime, it is not a
lesser included offense.”    Weaver,  306 N.C. at  635,  295 S.E.2d at
379.
We have previously defined the crime of solicitation as
“counseling, enticing or inducing another to commit a crime.”
State v. Furr,  292 N.C.  711,  720,  235 S.E.2d  193,  199, cert.
denied,  434 U.S.  924,  54 L. Ed.  2d  281  (1977).    Acting in




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concert, as applied to first-degree murder, requires  “two persons
join[ed] in a purpose to commit  [murder],” where both persons are
“actually or constructively present.”    State v. Westbrook,  279
N.C.  18,  41,  181 S.E.2d  572,  586  (1971), death sentence vacated,
408 U.S.  939,  33 L. Ed.  2d  761  (1972).    Under this theory, each
person  “is not only guilty as a principal if the other commits
[murder], but he is also guilty of any other crime committed by
the other in pursuance of the common purpose.”    Id.
Defendant cites State v. Westbrooks, in which we held
that solicitation to commit murder is a lesser included offense
of first-degree murder as an accessory before the fact.
Westbrooks,  345 N.C. at  56-57,  478 S.E.2d at  491.    Defendant
acknowledges that our legislature has since abolished the
distinction between first-degree murder as an accessory before
the fact and first-degree murder as a principal.    See N.C.G.S.  §
14-5.2  (2001)  (“All distinctions between accessories before the
fact and principals to the commission of a felony are abolished.
Every person who heretofore would have been guilty as an
accessory before the fact to any felony shall be guilty and
punishable as a principal to that felony.”).    Nonetheless,
defendant contends that solicitation, accessory before the fact
to murder, and acting in concert to commit murder are essentially
a continuum of defendant’s involvement in the murder, as all
three involve defendant’s enticing another to commit the murder.
Because we have previously determined that solicitation merges
into accessory before the fact, defendant contends we must also
conclude that a conviction for solicitation may under some




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circumstances merge into a conviction for murder based upon a
theory of acting in concert.    Defendant asserts that because her
role in the present murder was minimal, the conviction for
solicitation should be considered a lesser offense of murder by
acting in concert.
We find no merit in defendant’s argument, as defendant
is asking us to use a factual rather than a definitional approach
to whether her convictions merge, an approach we rejected in
Westbrooks,  345 N.C. at  56,  478 S.E.2d at  491.    The crime of
solicitation requires counseling, enticing, or inducing another
to commit a crime.    Furr,  292 N.C. at  720,  235 S.E.2d at  199.
This element is not required for acting in concert.    Indeed,
acting in concert requires actual or constructive presence at the
crime, an element not present in the definition of solicitation.
Westbrook,  279 N.C. at  41,  181 S.E.2d at  586.    Because the crime
of solicitation requires the element of enticement, an element
not required for murder under a theory of acting in concert, we
hold that solicitation is not a lesser included offense of murder
by acting in concert.    Weaver,  306 N.C. at  635,  295 S.E.2d at
379.
Defendant also argues that her conviction for
conspiracy should merge with her conviction for first-degree
murder by acting in concert.    Defendant concedes that conspiracy
is a separate offense from the completed crime that normally does
not merge into the substantive offense.    See State v. Carey,  285
N.C.  509,  513,  206 S.E.2d  222,  225  (1974).    However, defendant
contends that her case is analogous to State v. Lowery, in which




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we stated that a codefendant convicted of the substantive offense
based solely on his participation in the conspiracy could not be
punished for both conspiracy and the separate offense.    State v.
Lowery,  318 N.C.  54,  74,  347 S.E.2d  729,  743  (1986).    In the
present case, defendant contends the essence of her illegal
behavior was in hiring Johnson to kill her husband and in
planning and assisting him prior to the commission of the murder.
As such, defendant contends she was convicted of murder solely on
the basis of her conspiracy to commit murder because her presence
at the scene of the murder was incidental and unnecessary.
We find no analogy between defendant’s case and that of
the codefendant in Lowery.    We first note that the death sentence
for the codefendant in Lowery was vacated on the basis of
N.C.G.S.  §  14-6, which has since been repealed by our
legislature.    Moreover, the evidence in Lowery showed that the
codefendant was not present at the actual murder.    Id. at  74,  347
S.E.2d at  742.    The codefendant’s murder conviction was
predicated solely on his participation in the conspiracy.    Id.
In the present case, defendant was not only present at the scene
of the murder  (albeit in another room), but she also let Johnson
into her home knowing he was going to kill her husband and
brought her husband into the room where he would be killed.    We
therefore conclude that defendant’s presence at the scene of the
murder was much more than incidental and unnecessary.
Accordingly, we find no merit in defendant’s contention
that her conspiracy conviction merged with her conviction for
first-degree murder based on a theory of acting in concert.




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Conspiracy to commit murder requires the defendant to enter into
an agreement with another person to commit murder with the intent
to carry out the murder.    State v. Woods,  307 N.C.  213,  219,  297
S.E.2d  574,  578  (1982).    Evidence at trial established that
defendant hired Johnson to kill her husband and planned and
assisted him prior to the commission of the murder.    This
evidence is sufficient to support a conviction for conspiracy to
commit murder.    We see no reason to depart from our long-held
rule that conspiracy is a separate offense from the substantive
offense and as such does not merge into the substantive offense.
See Carey,  285 N.C. at  513,  206 S.E.2d at  225.    The requirement
of an agreement, while necessary to sustain a conviction for
conspiracy, is not a necessary element for murder by acting in
concert, so defendant’s conviction for conspiracy to commit
murder does not merge into her conviction for murder by acting in
concert.    See Weaver,  306 N.C. at  635,  295 S.E.2d at  379.
This assignment of error is without merit.
CAPITAL SENTENCING PROCEEDING
Defendant next assigns error to the trial court’s
failure to instruct the jury on statutory mitigating
circumstances she contends were supported by the evidence.
Defendant contends that her due process and Eighth Amendment
rights against cruel and unusual punishment were violated when
the trial court failed to submit the  (f)(4) and  (f)(6) mitigating
circumstances for the jury’s consideration.
Defendant first argues that the trial court erred in
failing to submit the  (f)(4) mitigator.    See N.C.G.S.  §




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15A-2000(f)(4)  (“The defendant was an accomplice in or accessory
to the capital felony committed by another person and  [her]
participation was relatively minor.”).    After reviewing the
record, we find no error in the trial court’s refusal to submit
the  (f)(4) circumstance.
A trial court must submit any mitigating circumstance
that is supported by substantial evidence.    State v. Strickland,
346 N.C.  443,  463,  488 S.E.2d  194,  206  (1997), cert. denied,  522
U.S.  1078,  139 L. Ed.  2d  757  (1998).    However,  “defendant bears
the burden of producing  ‘substantial evidence’ tending to show
the existenc

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