State v. Gillard

IN THE SUPREME COURT OF NORTH CAROLINA

No. 316A19

Filed 13 December 2024

STATE OF NORTH CAROLINA

v.

SEAGA EDWARD GILLARD

Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing

a sentence of death entered by Judge Paul C. Ridgeway on 4 March 2019 in Superior

Court, Wake County, upon a jury verdict finding defendant guilty of two counts of

first-degree murder. Heard in the Supreme Court on 31 October 2023.

Joshua H. Stein, Attorney General, by Heidi M. Williams, Assistant Attorney

General, for the State-appellee.

Glenn Gerding, Appellate Defender, by Amanda Zimmer, Assistant Appellant

Defender, and Aaron Johnson, Assistant Appellate Defender, for defendant-

appellant.

BERGER, Justice.

Defendant was convicted of two counts of first-degree murder and sentenced to

death. He raises several issues on appeal, including admission and use of Rule 404(b)

evidence, adequacy of jury instructions, and improper challenges for cause during

jury selection, along with other perfunctory arguments. We address each in turn and

conclude that defendant received a fair trial free from error. In addition, the trial

court’s judgment that defendant should be sentenced to death based upon the jury’s

recommendation during the sentencing phase was free from error.

STATE V. GILLARD

Opinion of the Court

I. Factual and Procedural Background

In the early morning hours of 2 December 2016, Dwayne Garvey and April

Holland were shot and killed at a Raleigh hotel. Surveillance footage showed two

men were the perpetrators. Raleigh Police released still photographs of the suspects,

and an anonymous tip reported that defendant and Brandon Hill were involved.

Police arrested defendant in his home on 3 December 2016.

Text messages showed that at approximately 3:30 a.m. on 2 December 2016,

defendant contacted Holland1 stating that he was seeking sexual services. Holland

replied with her price and provided defendant with the address for the hotel.

Defendant informed Holland of his arrival around 4:38 a.m., and Holland responded

with her room number.

Surveillance footage showed defendant and Hill enter the hotel through a side

door, and they began walking towards Holland’s room. The two men were seen pacing

in the hallway prior to defendant entering Holland’s room. The footage showed

Garvey, who served as Holland’s protector, walk past defendant and Hill in the

hallway. An extraction report of Garvey’s phone showed that he texted Holland “I

saw two dudes. . . . Let me know you good.”

Approximately four minutes later, the footage showed Garvey banging on the

door to Holland’s room. Hill then reentered the hallway carrying a gun and Garvey

tried swatting at it before putting his hands in the air. The footage showed Hill shoot

1 Holland and Garvey both received the text messages using Google Voice.

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Garvey several times. Defendant exited Holland’s room and fired two shots into the

room.

Both Garvey and Holland sustained multiple gunshot wounds and were dead

when officers arrived. The autopsy of Garvey showed that the fatal shot severed his

aorta. Holland’s autopsy revealed that she was twelve weeks pregnant at the time

and had suffered two gunshot wounds, one to the right side of her face and a fatal

shot to her chest.

As part of their investigation, police obtained a search warrant for defendant’s

home. During the search, officers seized two cell phones. An extraction report of

defendant’s phones showed he had conducted an internet search for female escorts on

the morning of the murders, followed by a search for the address of the hotel where

Garvey and Holland were located. His browsing history also showed that shortly

after the murders occurred, defendant searched multiple times for “man wanted for

shooting,” “man wanted for shooting, Raleigh, NC,” “two men wanted in Raleigh,” and

“[h]ow much can you face for double homicide?” He also accessed a webpage

concerning state laws on fetal homicide.

On 23 January 2017, defendant was indicted by a Wake County grand jury on

two counts of first-degree murder, and the State subsequently announced its intent

to seek the death penalty. Defendant filed numerous pretrial motions seeking to

prohibit the State from introducing evidence of prior criminal activity by defendant

against multiple victims, to suppress witnesses’ pretrial identifications of defendant,

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and to prohibit the imposition of the death penalty on various grounds.

A Wake County jury found defendant guilty of two counts of first-degree

murder, and he was sentenced to death on 4 March 2019 following the jury’s

recommendation. Defendant timely appealed to this Court pursuant to N.C.G.S.

§ 7A-27(a). We find no prejudicial error in defendant’s conviction and affirm the trial

court’s death sentence.

II. Analysis

A. Admission of 404(b) Evidence of Prior Acts Against Bessie A. and Rachel

B.2

Defendant first argues that the trial court erred in admitting the State’s 404(b)

evidence regarding prior criminal acts that defendant committed against Bessie A.

and Rachel B.

Approximately two months before the murders of Garvey and Holland, Bessie

A. was contacted by a man who was seeking sexual services. Bessie A. agreed to meet

the man at a low-budget hotel in Raleigh, and she was ambushed when two men

entered her room brandishing firearms. The men forced Bessie A. to remove her

clothes and then stole her purse, bank card, driver’s license, tablet, and cell phone.

One of the men, whom Bessie A. recalled wearing a red hat and having a tattoo on

his hand, raped her at gunpoint. The men then tied Bessie A.’s feet and hands

2 Throughout this opinion, we have chosen to use first names and initials to identify

sexual assault victims who provided 404(b) evidence to ensure that their experiences are not

anonymized or diminished, while at the same time respecting their privacy.

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together using pillowcases, threw blankets on top of her, and fled the scene. Bessie

A.’s license was discovered by police in Hill’s possession, and she later identified both

defendant and Hill as the perpetrators. Bessie A. specifically named defendant as

the individual who had raped her.

Less than two weeks later, on 28 October 2016, Rachel B. was also contacted

by a man who planned to meet her at a low-budget hotel for sexual services. When

Rachel B. opened the door to greet the man, she was ambushed by two men with guns.

The two men began going through her personal items, forced her to undress, tied her

hands and feet together, and then took turns raping her. The men then strangled

her with a phone cord and took turns kicking her in the face. The two men stole

Rachel B.’s ID, Social Security card, birth certificate, cell phone, clothes, and other

personal items before leaving the hotel room. During this incident, Rachel B. noticed

one man had a foreign accent and spider tattoos on his calf. She later identified this

individual as defendant.

After the State disclosed its intent to call Bessie A. and Rachel B. as witnesses,

defendant filed motions in limine to exclude this evidence. In its order on the

admissibility of 404(b) evidence concerning the Bessie A. incident, the trial court

made the following findings of fact:

11. On October 16, 2016, [Bessie A.] was raped and robbed

in a hotel. The night of the rape, [Bessie A.] had been

prostituting herself and had agreed to meet up with a

potential “John.” To [Bessie A.]’s surprise, two black males

arrived and forced her into the hotel bedroom.

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12. Both assailants had pistols, one silver and one black,

and told her to get on the hotel bed. The men continued to

yell at [Bessie A.] and demand for her to tell them where

her money and belongings were. They took her I.D. and her

debit card from her purse and forced her to reveal her PIN.

13. The men stripped her of her clothes, bound her hands

and feet with the telephone cord, and the first man

proceeded to rape her.

14. After the first man was finished, he disposed of the

condom in the toilet. The second man was unwilling to

penetrate because he did not have a condom. The two men

then wrapped [Bessie A.] in a blanket and left her naked

and restrained on the bed.

15. [Bessie A.] was able to make her way downstairs to the

hotel lobby and was aided by the staff, and later, the police.

16. [Bessie A.] was able to identify Defendant and Co-

Defendant Hill as her assailants with 80% certainty from

a properly-administered police photo lineup.

17. Through further police investigation, [Bessie A.]’s I.D.

and debit card were found in the car used by co-defendant

Brandon Hill.

18. Defendant and co-defendant Brandon Hill are known

associates, having been identified as such by the video of

the Holland/Garvey crime scene . . . .

19. As to the victims, [Bessie A.] and Holland were both

prostitutes in Raleigh who agreed to have sex with a single

male in exchange for payment.

20. Rather than a single male, two black males showed up

to the scene where [Bessie A.] and Holland were assaulted.

21. In each instance, the two assailants were armed with

pistols used to threaten [Bessie A.] and Holland.

22. Both of the assaults took place in low-budget hotels in

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Raleigh, North Carolina.

23. The criminal activity against [Bessie A.] and

Holland/Garvey occurred 47 days apart in Raleigh, North

Carolina.

The trial court then concluded that this evidence was admissible pursuant to

Rule 404(b) of the North Carolina Rules of Evidence, for the following reasons:

4. The similarities in the events between [Bessie A.] and

Holland show motive and a common scheme or plan: a plan

that starts with the luring of a prostitute into a low-budget

hotel room and ends with a robbery and sexual assault, and

sometimes violence, if Defendant’s plan meets a hurdle as

apparently it did with Holland.

5. The two events are close enough in proximity of time and

similarity of facts that this Court concludes that the

evidence of the robbery and sexual assault of [Bessie A.] is

probative of a motive and common scheme or plan of

Defendant, as well as Defendant’s identity, with respect to

the crimes charged in this trial.

In a similar 404(b) order concerning the admissibility of Rachel B.’s testimony,

the trial court made the following findings of fact:

11. On October 28, 2016, [Rachel B.] reported she had been

raped in the early morning hours in a Microtel hotel in

Morrisville, NC by two black males.

12. The morning of the rape, [Rachel B.] had been

prostituting herself by using a website called “Backpage.”

After a smoke break outside of the hotel, [Rachel B.] was

grabbed by two men and forced back into her hotel room.

13. Both assailants had pistols, one silver and one black,

and told her to get on the hotel bed. The assailants

continued to yell at [Rachel B.] and demanded her to tell

them where her money and belongings were. They took her

I.D. and her Social Security card from her bag.

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14. The assailants stripped [Rachel B.] of her clothes,

“hogtied” her hands and feet with the telephone cord,

covered her head with a pillow case and stuffed her

underwear in her mouth. Threatening her with hand guns,

both men raped her and perpetrated other sexual offenses

against her. After the assailants were finished, they told

[Rachel B.] to stay put and said they were going to get their

friends to have “more fun with her.” After the assailants

left, [Rachel B.] was able to escape and make her way

downstairs to the hotel lobby where she was aided by the

staff, and later, the police.

15. [Rachel B.] reported that the assailants were black

males and that one, the more violent of the two, had a

foreign accent and had a tattoo of three spiders on his lower

right leg, and a tattoo of a sunset on his lower left leg. She

further reported that the assailants had a black “camera

case” styled box that was full of firearms.

16. Defendant, a native of St. Lucia, has a Caribbean Island

accent. He also has a tattoo of three spiders on his lower

right leg and a tattoo of a sunset on his lower left leg.

....

20. As to the victims, [Rachel B.] and Holland were both

prostitutes in Wake County, North Carolina

(Raleigh/Morrisville) who agreed to have sex with different

men in exchange for payment and utilized the Backpage

website to solicit clients.

21. Two assailants were involved in the assaults on both

[Rachel B.] and Holland/Garvey, and both involved

unprovoked violence.

22. Both assailants were armed with pistols used in the

commission of the crimes against [Rachel B.] and Holland.

23. Both of the assaults took place in low-budget hotels in

Wake County, North Carolina.

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Opinion of the Court

24. The criminal activity against [Rachel B.] and

Holland/Garvey occurred 35 days apart.

The trial court concluded that the evidence regarding Rachel B. was admissible

pursuant to Rule 404(b), because:

4. The similarities in the events between [Rachel B.] and

Holland/Garvey show motive and a common scheme or

plan: a plan that starts with the confinement of a prostitute

in a low-budget hotel room and ends with a robbery and

sexual assault, and sometimes violence, if Defendant’s plan

meets a hurdle as it apparently did with Holland/Garvey.

5. The two events are close enough in proximity of time and

similarity of facts that this Court concludes that the

evidence of the robbery and sexual assault of [Rachel B.] is

probative of a motive and common scheme or plan of

Defendant, as well as Defendant’s identity, with respect to

the crimes charged in this trial.

The trial court also considered the proffered evidence of both witnesses in light

of Rule 403, concluding that,

[a]fter weighing the probative value of the proffered

evidence against the danger of unfair prejudice, confusion

of the issues, misleading the jury, and considerations of

undue delay, waste of time, or needless presentation of

cumulative evidence . . . the proffered evidence should not

be excluded under Rule 403.

Both Bessie A. and Rachel B. subsequently testified at defendant’s trial.

Defendant requested that the trial court give a limiting instruction related to their

testimony, and the trial court gave essentially the same limiting instruction to the

jury for both witnesses, stating:

This evidence was received solely for the following

purposes: the identity of the person who committed the

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crime charged in this case, if committed; that the defendant

had a motive for the commission of the crime charged in

this case, if committed; and that there existed in the mind

of the defendant a plan, scheme, system, or design

involving the crime charged in this case, if committed. If

you believe this evidence, you may consider it but only for

the limited purposes for which it was received. You may not

consider it for any other purpose.

On appeal, defendant raises several arguments contesting the admissibility of

this evidence. First, defendant contends that the admission of the evidence of the

prior acts with Bessie A. and Rachel B. did not fall within the proper bounds of Rule

404(b) evidence. Second, defendant asserts that even if this evidence was proper

under Rule 404(b), it should have been excluded under Rule 403 for its cumulative

prejudicial impact. Third, defendant argues that the trial court’s limiting

instructions did not appropriately limit the jurors’ use of the evidence. And fourth,

defendant asserts that the focus on this “highly disturbing evidence” derailed the

jurors’ consideration of the actual events, influencing the jury’s verdict. We disagree.

1. 404(b) Evidence

Rule 404(b) is a “general rule of inclusion of relevant evidence of other crimes,

wrongs or acts by a defendant.” State v. Coffey, 326 N.C. 268, 278–79 (1990) (cleaned

up); see also State v. Carpenter, 361 N.C. 382, 386 (2007). While this type of evidence

may not be admitted “to prove the character of a person in order to show that he acted

in conformity therewith,” such evidence may be admitted “for other purposes, such as

proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake, entrapment or accident.” N.C.G.S. § 8C-1, Rule 404(b) (2023).

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But because there lies a risk of the jury “giv[ing] excessive weight to the vicious

record of [a] crime,” State v. Al-Bayyinah, 356 N.C. 150, 154 (2002) (quoting 1A John

H. Wigmore, Evidence § 58.2 (Peter Tillers ed. 1983)), there are safeguards in place

to ensure that evidence admitted under Rule 404(b) is proper. Specifically, 404(b)

evidence is “constrained by the requirements of similarity and temporal proximity.”

Al-Bayyinah, 356 N.C. at 154 (citing State v. Lloyd, 354 N.C. 76, 88 (2001); State v.

Lynch, 334 N.C. 402, 412 (1993)).

Prior acts are sufficiently similar under Rule 404(b) if the facts “tend to support

a reasonable inference that the same person committed both the earlier and later

acts.” State v. Stager, 329 N.C. 278, 304 (1991). These facts need not “rise to the level

of unique and bizarre.” State v. Beckelheimer, 366 N.C. 127, 131 (2012) (cleaned up).

Rather, the ultimate question is one of “logical relevancy.” State v. McClain, 240 N.C.

171, 177 (1954) (explaining that there must be a logical connection between the prior

bad act and the crime charged); see also State v. Fowler, 230 N.C. 470, 473 (1949)

(“The touchstone is logical relevancy.”); State v. Felton, 283 N.C. 368, 372 (1973);

State v. Hunt, 305 N.C. 238, 246 (1982).

Once a trial court determines that the requirements of Rule 404(b) have been

met, it must then “balance the danger of undue prejudice against the probative value

of the evidence, pursuant to Rule 403.” Carpenter, 361 N.C. at 388–89. “When the

trial court has made findings of fact and conclusions of law to support its 404(b)

ruling, we look to whether the evidence supports the findings and whether the

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findings support the conclusions.” Beckelheimer, 366 N.C. at 130. “We review de

novo the legal conclusion that the evidence is, or is not, within the coverage of Rule

404(b).” Id.

Here, defendant contests several of the trial court’s findings of fact and

conclusions of law in both 404(b) orders. First, defendant asserts that finding of fact

No. 21 in the Bessie A. Order is not supported by the evidence.3 Specifically,

defendant contends that because the hotel surveillance footage did not show

defendant entering Holland’s room with a gun in his hand or otherwise threaten

Holland prior to Hill shooting Garvey, and because there were no signs of struggle or

restraint against Holland, “the evidence did not support a finding that [defendant]

used his gun to threaten Holland after entering the room.”

But defendant reads into the finding that he threatened Holland before Hill

shot and killed Garvey. This finding does not distinguish the point in time defendant

used his weapon to threaten Holland, whether before or after Hill shot Garvey, and

is overwhelmingly supported by competent evidence as the surveillance footage alone

showed defendant stepping out of Holland’s hotel room with his gun in hand, and

then shooting and killing her.

Defendant next argues that finding of fact No. 21 in the Rachel B. Order was

not supported by competent evidence. Defendant concedes that there was no

3 In his brief, defendant concedes that the trial “court’s finding as to [Rachel B.] is more

accurate as it states at finding [of fact No.] 22 that ‘[b]oth assailants were armed with pistols

used in the commission of the crimes against [Rachel B.] and Holland.’ ”

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provocation for the crimes committed against Rachel B., but he argues that his

shooting of Holland was provoked by Hill’s shooting of Garvey in the hallway.

Provocation “must ordinarily amount to an assault or threatened assault by

the victim against the perpetrator.” State v. Watson, 338 N.C. 168, 176 (1994), cert.

denied, 514 U.S. 1071 (1995), overruled in part on other grounds by State v.

Richardson, 341 N.C. 585 (1995). Thus, finding of fact No. 21 in the Rachel B. Order

was supported by competent evidence as neither the shooting of Garvey by someone

acting in concert with defendant nor defendant’s shooting of Holland were committed

in response “to an assault or threatened assault by the victim[s].” The surveillance

footage showed Garvey banging on Holland’s hotel door when he was approached by

Hill, who was brandishing a firearm. In response, Garvey attempted to swat at the

gun, but then put his hands up in the air and backed up against the wall in

submission to Hill before he was shot and killed. Garvey’s actions resulted

exclusively from Hill’s escalation of force by the introduction of a firearm into this

encounter. Thus, as Garvey neither threatened nor assaulted Hill, it cannot be said

that Hill’s actions were provoked by the victim’s response. See Watson, 338 N.C. at

176. This evidence alone was sufficient to support the challenged finding.

But even assuming arguendo that Hill’s killing of Garvey was sufficiently

“provoked” by Garvey’s actions, the killing of an individual by a co-defendant cannot

amount to legal provocation to kill another person when there is no evidence that the

second victim posed any threat. Holland was naked and defenseless at the time of

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her murder, and there is no evidence that she threatened or assaulted defendant such

that she provoked her murder.

Defendant next challenges three portions of the trial court’s 404(b) conclusions

of law in the Bessie A. Order. First, defendant argues that the portion of conclusion

of law 4—that each victim was lured to a low-budget hotel—is not supported by the

evidence. Defendant essentially asserts that the women could not have been lured to

a hotel because they were already located there for their work as prostitutes.

First, we note that this portion of conclusion of law No. 4 is more properly

categorized as a finding of fact, and as such we review whether competent evidence

supports this finding. State v. Johnson, 269 N.C. App. 76, 81–82 (“[F]indings of fact

normally involve logical reasoning through the evidentiary facts.” (cleaned up)), aff’d

378 N.C. 236 (2021); Williams v. Marchelle Isyk Allen, P.A., 383 N.C. 664, 672–73

(2022) (“Any determination reached through logical reasoning from the evidentiary

facts is more properly classified a finding of fact.” (cleaned up)); Beach v. McLean, 219

N.C. 521, 525 (1941) (“If it is a mixed question of fact and law it is likewise conclusive,

provided there is sufficient evidence to sustain the element of the fact involved.”).

Defendant is correct that both Bessie A. and Holland were located at low-

budget hotels by nature of their work as prostitutes. However, we disagree with his

contention that because the women were already located at low-budget hotels, his

actions could not constitute “luring.” Defendant contacted both women on the pretext

of obtaining consensual prostitution services for himself. Thus, defendant was the

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cause of their presence at each location at the relevant, agreed upon times.

Moreover, neither woman was aware that defendant would arrive with a

companion and that the two men would rob them and perpetrate violent acts against

them. The evidence of the pretextual initiations of these visits to both Bessie A. and

Holland as one which would include consensual sexual services with one man

sufficiently support the trial court’s finding that defendant enticed or otherwise

caused these women to utilize hotels for the purposes of robbing and sexually

assaulting them. See State v. Howell, 343 N.C. 229, 236 (1996) (“These facts are so

strikingly similar as to permit [the victim’s friend, a fellow prostitute, to testify] for

the purpose of proving defendant’s identity as well as showing a common opportunity,

plan, and modus operandi to defendant’s attacks.”) See also State v. Pruitt, 94 N.C.

App. 261, 267 (1989) (concluding that testimony from the defendant’s former lovers

was admissible to prove the defendant’s modus operandi, plan, motive and intent

concerning defendant’s actions to lure his victims by pretextually befriending them

before assaulting them); State v. Morrison, 85 N.C. App. 511, 514 (1987) (stating that

defendant lured his victims to the crime scene on the pretext of changing clothes

before they went out on a date).

Defendant also challenges additional portions of conclusion of law No. 4 for

both the Bessie A. and Rachel B. Orders, asserting that the evidence does not support

a finding that the common scheme “ends with a robbery and sexual assault, and

sometimes violence, if [d]efendant’s plan meets a hurdle as it apparently did with

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Holland.” Defendant contends that because “[n]o hurdles came up in the [Bessie A.]

and [Rachel B.] incidents,” the State could not show that “Hill and [defendant] had a

plan to use violence if someone other than the woman they were meeting showed up

and presented an obstacle to their activity.” Defendant concedes that he and Hill

“used violence to control” both Bessie A. and Rachel B.

As with the portion of the Bessie A. Order conclusion of law No. 4 discussed

above, these portions of the Bessie A. and Rachel B. Orders are better categorized as

findings of fact, as they demonstrate the trial court’s “logical reasoning from the

evidentiary facts.” See Williams, 383 N.C. at 672–73. Thus, we analyze to determine

whether competent evidence supports the finding that defendant’s actions against

both Bessie A. and Rachel B. would end with “violence, if [d]efendant’s plan meets a

hurdle.”

One could argue that defendant’s narrow reading of the finding—that these

encounters would “sometimes” end in “violence if [d]efendant’s plan me[t] a hurdle as

apparently it did with Holland”—may not be supported by the evidence. Defendant

concedes, however, that these incidents always involved violence regardless of

whether defendant’s plan met a hurdle. We therefore “examine whether the

remaining findings support the trial court’s determination” that both Bessie A.’s and

Rachel B.’s encounters “show[ed] motive and a common scheme or plan” under Rule

404(b).

Defendant argues that the trial court erred in concluding that there was

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sufficient similarity between the Bessie A., Rachel B., and Holland incidents “to show

a common scheme or plan.” Defendant concedes that there were many similarities

between the events, such as the facts that “all three women were working as

prostitutes out of cheap hotels, . . . using Backpage to set up meetings, and” only

expecting a single male client when two men appeared armed with pistols. But

defendant argues that these “do not show that the events leading to Holland’s death

were part of a common scheme or plan.” Rather, defendant encourages us to focus on

the differences in the incidents, arguing that because defendant and Hill both

immediately forced their way into Rachel B.’s and Bessie A.’s rooms, while only

defendant entered Holland’s room in this case, and because there were no signs of

struggle or injury to Holland before she was shot, these prior acts should not have

been admitted under Rule 404(b).

But the trial court correctly concluded that defendant’s prior acts against

Bessie A. and Rachel B. and the charged crime were “close enough in proximity of

time and similarity of facts” to demonstrate a common scheme or plan.

While defendant is correct in his assertion that there are a few minor

differences between these three occurrences, “the correct analysis for the

admissibility of Rule 404(b) evidence involves focusing on the similarities and not the

differences between the two incidents.” State v. Pickens, 385 N.C. 351, 359 (2023).

“Our Rule 404(b) standard does not require identical or even near-identical

circumstances between the charged offense and the prior bad act for evidence of the

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prior bad act to be admissible.” Id. But all that is required is some logical connection

in both the prior bad act and the charged crime. See McClain, 240 N.C. at 177;

Fowler, 230 N.C. at 473.

Here, all three women were prostitutes working out of low-budget hotels in the

Raleigh and Wake County areas; they were operating through Backpage; defendant

and Hill appeared together at the hotels before each crime took place; and both men

were armed with pistols which were used to threaten the women in some capacity.

Further, Bessie A., Rachel B., and Holland were contacted by one man, who then

unexpectedly arrived with a companion. These facts are sufficient in both temporal

proximity and similarity to demonstrate a common plan or scheme to rape and rob

Holland on the night she was murdered. And because “Rule 404(b) allows the use of

extrinsic conduct evidence so long as the evidence is relevant for some purpose other

than to show . . . propensity,” we need not consider whether this evidence was also

sufficient to demonstrate motive. State v. Cummings, 326 N.C. 298, 310 (1990)

(emphasis added) (quoting State v. Morgan, 315 N.C. 626, 637 (1986)).

2. Rule 403 Analysis

Once it is established that “a prior bad act is both relevant and meets the

requirements of Rule 404(b), the trial court must balance the danger of undue

prejudice against the probative value of the evidence, pursuant to Rule 403.”

Carpenter, 361 N.C. at 388–89. Otherwise admissible evidence may be excluded

under Rule 403 “if its probative value is substantially outweighed by the danger of

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unfair prejudice, confusion of the issues, or misleading the jury.” N.C.G.S. § 8C-1,

Rule 403 (2023).

It goes without saying that “evidence probative of the State’s case is always

prejudicial to the defendant,” Stager, 329 N.C. at 310 (citing Coffey, 326 N.C. at 281),

but this is not the threshold for exclusion. Rather, it must be unfairly prejudicial in

that it has “an undue tendency to suggest decision on an improper basis.” State v.

DeLeonardo, 315 N.C. 762, 772 (1986) (cleaned up). We review a trial court’s Rule

403 determination for abuse of discretion and will only disturb it when it is

“manifestly unsupported by reason or is so arbitrary that it could not have been the

result of a reasoned decision.” State v. Richardson, 385 N.C. 101, 133 (2023) (quoting

State v. Hennis, 323 N.C. 279, 285 (1988)).

Defendant contends that the trial court abused its discretion because the

“prejudicial impact of the evidence on the jury cannot be viewed separately as to each

incident, but rather must be viewed as to the cumulative impact of the evidence”

regarding Bessie A. and Rachel B. Further, defendant contends that the emotional

impact of Bessie A.’s and Rachel B.’s testimonies was unfairly prejudicial because it

most likely influenced “[a]ny juror who might have harbored a reasonable doubt that

[defendant] acted with premeditation and deliberation in shooting Holland, or a

reasonable doubt that [defendant] had attempted to rape or rob Holland” on the night

she was murdered.

But this evidence was not unfairly prejudicial, nor did it substantially

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outweigh the highly probative value, because it was introduced to establish

defendant’s common scheme or plan. A review of the record shows that the trial court

carefully considered the Rachel B. and Bessie A. evidence, and then provided multiple

limiting instructions to the jury during trial, as will be discussed below. As such, it

cannot be said that the trial court’s ruling is “manifestly unsupported by reason or is

so arbitrary that it could not have been the result of a reasoned decision.”

Richardson, 385 N.C. at 133 (quoting Hennis, 323 N.C. at 285).

3. Limiting Instruction

Defendant next asserts that the trial court plainly erred in its limiting

instructions regarding Bessie A.’s and Rachel B.’s Rule 404(b) evidence. Specifically,

defendant contends that because the limiting instructions did not sufficiently advise

the jury that the 404(b) evidence could only be considered on the issues of attempted

robbery or rape, the jury was permitted to consider the evidence for purposes of

defendant’s state of mind when shooting Holland.

However, not only did defendant fail to object to these limiting instructions,

but to the contrary, he requested them. After review, there was no error in the trial

court’s limiting instructions. But even if there was error, it was invited error as “[a]

criminal defendant will not be heard to complain of a jury instruction given in

response to his own request.” State v. Duke, 360 N.C. 110, 124 (2005) (alteration in

original) (quoting State v. McPhail, 329 N.C. 636, 643 (1991)); see also State v.

Wilkinson, 344 N.C. 198, 214 (1996) (“Since defendant asked for the exact instruction

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that he now contends is prejudicial, any error was invited error.” (cleaned up)); State

v. Miller, 289 N.C. App. 429, 433 (2023) (“[T]he invited error doctrine [applies] when

a defendant’s affirmative actions directly precipitate error.”).

B. Evidence of a Prior Assault with a Firearm on Kara L.

Next, defendant argues that the trial court plainly erred under Rules 401 and

403 of the Rules of Evidence by admitting evidence at trial regarding a prior assault

on Kara L. Defendant filed a motion in limine to exclude the evidence but failed to

renew this objection at trial. As such, defendant’s unpreserved claim is subject to

plain error review. See State v. Lawrence, 365 N.C. 506, 516 (2012).

1. Kara L.’s Testimony

In November 2016, Kara L. met defendant through a website on which she was

advertising herself for prostitution. Kara L. and defendant met at defendant’s home

and had consensual sex. At the time, defendant introduced himself as “Carlos” online,

but Kara L. later discovered his identification card with the name “Seaga Gillard”

listed on it.

After three days of being together, defendant told Kara L. that he was going to

advertise her online for prostitution and that she was going to make money for him

and his friend, “B.” When Kara L. protested, defendant threatened to kill her family.

Over the course of the next few days, defendant transported Kara L. to a hotel in

Raleigh and told her to call him after she made $1,000.00.

Once Kara L. informed defendant that she had earned sufficient money,

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defendant and “B” picked her up, took her back to defendant’s home, and told her that

she was required to make an additional $5,000.00 for them. Kara L. objected to this

request and asked to be taken home. In response, defendant took out his gun, told

Kara L. to show her teeth, and placed the gun up to her mouth. Defendant told Kara

L. that she did not have a choice, and that “if he did not love her[,] her blood would

be all over the room.” During this time, Kara L. heard defendant refer to his gun by

the name of “Lemon Squeeze.”

Prior to defendant’s trial, the State noticed its intent to introduce evidence of

the incident between defendant and Kara L. In response, defendant filed a pretrial

motion to prohibit the State from introducing this evidence during both the guilt-

innocence and sentencing phases of trial. The trial court held a hearing to determine

whether the proposed evidence was admissible and entered an order that permitted

the State to elicit testimony from Kara L. to identify defendant and/or the weapon he

used on the night she was assaulted. However, the trial court excluded evidence that

may have constituted the offenses of human trafficking, kidnapping, assault, and

other wrongs because the evidence was “too dissimilar to the charges” of first-degree

murder.

At trial, Kara L. testified regarding her experience with defendant. Defendant

did not object to Kara L.’s testimony, but instead requested that the trial court give

the State a cautionary instruction based upon the order limiting Kara L.’s testimony.

The trial court instructed the State and Kara L. that Kara L. should not testify about

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defendant forcing her to engage in prostitution or taking money in connection with

prostitution.

During Kara L.’s trial testimony, she vaguely recounted meeting defendant

online, staying at his house for a few days, and then subsequently discovering that

his name was “Seaga Gillard.” Kara L. confirmed that during her stay at defendant’s

house, she met defendant’s friend named “B,” and that both defendant and “B” had

guns. Kara L. further testified as follows:

[The State]. Did he have a name for his gun?

[Kara L.]. Lemon Squeeze.

....

[The State]. At some point, did an incident occur with his

gun and you?

[Kara L.]. Yes, ma’am.

[The State]. What did he do with his gun?

[Kara L.]. He put the gun to my face, told me to show [my]

teeth, and said, “If [I] d[idn]’t love [him], my blood would

be all over the walls.”

[The State]. And you said he told you to show your teeth?

[Kara L.]. Yes, ma’am.

[The State]. What did he do with his gun when you showed

your teeth?

[Kara L.]. He put it up to my mouth.

Kara L. then identified defendant and “B” as the two perpetrators in the still

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photographs taken from the hotel surveillance footage on the night of the murders.

Defendant did not object to Kara L.’s testimony or the identification, but

instead requested a limiting instruction “concerning the gun to the mouth” incident.

The trial court granted this request, giving the following limiting instruction to the

jury:

All right. Ladies and gentlemen, I’ll give you a brief

instruction regarding a portion of the evidence you heard.

Evidence has been received tending to show that this

defendant held a firearm in the face of this witness, and

this evidence was received solely for the following

purposes: for the purpose of showing the identity of the

person that committed the crime charged in this case, if it

was committed, and the identity of a firearm used in the

crime charged in this case, if it was committed. If you

believe this evidence, you may consider it but only for the

limited purposes for which it was received. You may not

consider it for any other purpose.

The trial court gave this limiting instruction once again during the final jury charge

as well, stating:

Evidence has been received tending to show that the

defendant assaulted or threatened Kara [L.] with a

firearm. This evidence was received solely for the purposes

of showing, A, the identity of the person who committed the

crimes charged in this case and, B, the identity of a firearm

which may have been related to the crimes charged in this

case. If you believe the evidence, you may consider it but

only for the limited purposes for which it was received. You

may not consider it for any other purpose.

Defendant now contends that the trial court committed plain error by

permitting Kara L. to testify that defendant assaulted her with a firearm.

Specifically, defendant argues that Kara L.’s testimony that defendant had a gun,

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and that he used the gun to threaten her, “had no relevance to identifying the gun

used in the shooting of Holland, and hence did not meet the requirements of Rule

401” or Rule 403. Defendant argues that this amounted to plain error because “[a]

juror who had not been swayed by the emotional impact of the evidence of the assault

of [Kara L.] might well have convicted [defendant] of second-degree murder.”

2. Plain Error Review

This Court applies the plain error standard of review for “unpreserved

instructional or evidentiary error[s]” which occur at trial. Lawrence, 365 N.C. at 518.

Plain error is an extreme remedy and “should be used sparingly, only in exceptional

circumstances, to reverse criminal convictions on the basis of unpreserved error.” Id.

at 517 (quoting State v. Odom, 307 N.C. 655, 661 (1983)).

Recently, this Court reiterated the standard for plain error review, clarifying

that for a defendant to succeed, three things must be shown:

First, the defendant must show that a fundamental error

occurred at trial. Second, the defendant must show that the

error had a probable impact on the outcome, meaning that

absent the error, the jury probably would have returned a

different verdict. Finally, the defendant must show that

the error is an exceptional case that warrants plain error

review, typically by showing that the error seriously affects

the fairness, integrity or public reputation of judicial

proceedings.

State v. Reber, 386 N.C. 153, 158 (2024) (cleaned up).

This exacting standard demands that even if error exists under step one, a

defendant must still demonstrate “that a jury probably would have reached a

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different result,” which “requires a showing that the outcome is significantly more

likely than not.” Id. at 159. Even then, defendant must show that this is the

exceptional case in which plain error review is warranted because the purported error

affects “the fairness, integrity or public reputation of judicial proceedings.” Id. at 158

(quoting Lawrence, 365 N.C. at 518).

Further, plain error review is unavailable for issues that fall “within the realm

of the trial court’s discretion,” State v. Steen, 352 N.C. 227, 256 (2000), such as Rule

403 determinations. See State v. Murillo, 349 N.C. 573, 602 (1998) (holding exclusion

of evidence under Rule 403 “is a matter left to the sound discretion of the trial court”);

see also State v. Norton, 213 N.C. App. 75, 81 (2011) (“Because our Supreme Court

has held that discretionary decisions of the trial court are not subject to plain error

review, we need not address [defendant]’s argument on this issue.” (cleaned up));

State v. Smith, 194 N.C. App. 120, 126–27 (2008) (“Our Supreme Court has held,

however, that discretionary decisions by the trial court are not subject to plain error

review.”); State v. Cunningham, 188 N.C. App. 832, 837 (2008) (“[W]e do not apply

plain error ‘to issues which fall within the realm of the trial court’s discretion.’ ”

(quoting Steen, 352 N.C. at 256)).

We, therefore, decline to address defendant’s Rule 403 argument for plain

error. However, because a “trial court’s rulings on relevancy are technically not

discretionary,” we must review defendant’s challenge under Rule 401. State v. Lane,

365 N.C. 7, 27 (2011).

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Evidence is “relevant” to a case if it has “any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” N.C.G.S. § 8C-1, Rule 401

(2023). “All relevant evidence is admissible, except as otherwise provided by the

Constitution of the United States, by the Constitution of North Carolina, by Act of

Congress, by Act of the General Assembly or by” our Rules of Evidence. N.C.G.S. §

8C-1, Rule 402 (2023). While a trial court’s relevancy determinations are not

discretionary, “we accord them great deference on appeal.” Lane, 365 N.C. at 27.

As a general rule “[w]eapons may be admitted in evidence where there is

evidence tending to show that they were used in the commission of a crime.” State v.

Wilson, 280 N.C. 674, 678 (1972). And in cases where “no weapon is found in a

defendant’s possession at the time of his arrest or thereafter, testimony that

defendant had once owned or possessed a weapon becomes especially relevant.” State

v. Mlo, 335 N.C. 353, 376 (1994) (emphasis added); see also State v. Smith, 357 N.C.

604, 614 (2003) (“Because the weapon used to murder the victim was never found,

evidence that defendant carried a knife with him at times had some relevance to the

case.”).

Here, defendant’s argument that the trial court committed plain error under

Rule 401 is without merit. First, the gun used by defendant to shoot Holland was

never recovered. Therefore, Kara L.’s testimony about defendant’s possession of,

preference for, and prior assault with a firearm was relevant as it made the fact that

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defendant possessed and used the weapon to kill Holland more probable. See Mlo,

335 N.C. at 376. Thus, the trial court did not err in admitting relevant evidence, and

because there was no “fundamental error,” there can be no plain error. Reber, 386

N.C. at 158.

However, even if the admission of Kara L.’s statement regarding defendant’s

assault with a firearm was not relevant, defendant cannot show that a jury “probably

would have reached a different result,” or that this purported error affects “the

fairness, integrity or public reputation of judicial proceedings.” Reber, 386 N.C. at

158–59. At trial, the State presented overwhelming evidence of defendant’s guilt—

including video footage of Hill and defendant shooting Garvey and Holland. Thus,

defendant cannot demonstrate plain error in the trial court’s admission of this

evidence.

C. Evidence of the Abusive Backgrounds of Prior Women Victimized by

Defendant

Defendant next argues that the admission of testimony regarding background

information of witnesses Angel Holland, Rachel B., Keyona T., and Keyana M. was

plain error because it was irrelevant and highly prejudicial. The evidence regarding

the personal background information of Holland and Rachel B. was introduced during

the guilt-innocence phase of trial, while the evidence related to Keyona T. and Keyana

M. was introduced during the capital sentencing phase. We address each in turn.

1. Guilt-Innocence Phase

Among the many witnesses called by the State during the guilt-innocence

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phase of trial were Rachel B. and the victim’s sister, Angel Holland. Angel Holland

was asked on direct examination if something had happened when she and her sister

were young “that kind of put April on a . . . downward spiral.” Defendant objected

and requested to be heard outside the presence of the jury, arguing that the question

solicited victim-impact testimony in violation of a pretrial order. According to

defendant, testimony regarding the victim’s childhood was irrelevant and violative of

this Court’s precedent in State v. Hembree, 368 N.C. 2 (2015).

The State responded to the objection, arguing that it was not

asking her about how this has affected her or anything like

that. I think that what has been clear in this trial is that

April was at a point in her life where she was prostituting,

and I think, as part of that story, kind of understanding

what got her there would make some sense to this jury and

would be relevant. I don’t plan on going very far into that

but just kind of where she was and how that got her to a

point where she began to prostitute.

We’ve had no evidence so far that she actually was

prostituting, and this is actually where the police found

this out . . . from her family, which is exactly why we then

start researching crimes against prostitutes. It kind of

starts that whole spiral into this investigation.

The trial court responded that

the fact that this victim was engaged in prostitution . . . i[s]

relevant to the jury to give some context to get to how she

came to be at the place she was that night, engaging with

a stranger over the Back Page ad. I think its probative to

give the context of why she was engaged in that type of

conduct.

I will caution the witness that characterizations of your

sister as, you know, a kind person or a loving person or all

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of those things . . . would not be relevant at this stage of

the proceedings. So I’ll ask you to listen carefully to the

questions that are asked of you and answer them—answer

specifically what’s being asked of you . . . .

The direct examination of Angel Holland continued:

[Angel:] When she was around seven or eight, she was

molested, and from there things started changing with her,

in a couple years of the incident.

[The State:] And as far as, kind of, as that starts to change

her, did she begin to date much older men?

[Angel:] Yes, she did.

[The State:] Would you say that those relationships were

abusive?

[Angel:] Yes.

[The State:] Yes?

[Defendant:] Objection.

The Court: Overruled.

[The State:] Did you know that your sister began to

prostitute?

[Angel:] It took a while for me to find out, but she did —

told — within a year, sort of.

On appeal, defendant again argues that “[t]he evidence that April Holland was

sexually abused as a child, engaged in abusive relationships with older men, and

began sex work as a teenager . . . had no relevance to the issues before the jury.”

Because defendant preserved his argument, which does not relate to a federal

constitutional right, we review pursuant to N.C.G.S. § 15A-1443(a). Thus, defendant

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has the burden of demonstrating that the trial court erred, and “there is a reasonable

possibility that, had the error in question not been committed, a different result

would have been reached at the trial.” N.C.G.S. § 15A-1443(a) (2023).

During the guilt-innocence phase of trial, evidence concerning a victim’s

character is generally not relevant. See Hembree, 368 N.C. at 16 (“Evidence of a

victim’s character, or the effect of the victim’s death on others, is only rarely relevant

when making a determination of guilt.”). On the other hand, this Court has held that

evidence of a victim’s history or habits may be “relevant to explain the particular

circumstances of the crime.” See State v. Barden, 356 N.C. 316, 349 (2002) (holding

that evidence that a victim worked late nights and kept cash in his wallet was

relevant to explaining why he was robbed and killed at his workplace in the middle

of the night). However, even if evidence is deemed to meet the low threshold for

relevance, it must “still be excluded when its probative value is substantially

outweighed by the danger of unfair prejudice.” Hembree, 368 N.C. at 17 (citing

N.C.G.S. § 8C-1, Rule 403).

Here, Angel’s testimony about her sister’s abusive background and subsequent

prostitution was not character evidence, as it did not relate to April Holland’s

disposition or traits. In fact, the trial court cautioned Angel to avoid testifying about

any “characterizations of your sister as, you know, a kind person or a loving person

or all of those things.” Instead, the evidence revealed the factual circumstances of

April Holland’s life relevant to explaining why she was engaging in prostitution on

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the night she was murdered by defendant at the hotel. See Barden, 356 N.C. 316.

Further, because Angel Holland was the first witness for the State to directly reveal

that April Holland was engaging in prostitution, coupled with the fact that her

testimony was extremely limited in scope, the probative value of this testimony was

not substantially outweighed by the risk of unfair prejudice against defendant. Thus,

because there was no error, there can be no plain error. Reber, 386 N.C. at 158.

Defendant next argues that the trial court plainly erred by allowing Rachel B.

to testify about her abusive childhood and subsequent experience as a prostitute.

Specifically, defendant contends that portions of Rachel B.’s testimony were

irrelevant “to proving Gillard’s identity, whether he acted as part of a common

scheme or plan or his motive in the events that led to Holland’s murder.” Because

defendant failed to object to this portion of Rachel B.’s testimony at trial, we review

for plain error. See Reber, 386 N.C. at 158.

As discussed above, Rachel B.’s 404(b) testimony was “probative of a motive or

common scheme or plan of [d]efendant, as well as [d]efendant’s identity.” But before

recounting defendant’s prior acts against her, Rachel B. testified that she was put

into foster care and lived in group homes or with other family members when she was

a child due to her mother’s drug addiction. Rachel B. also testified that she discovered

that a family member had been filming her while she was showering or using the

bathroom, and then masturbating to the videos of her. Rachel B. also testified that

as a child, her mother trafficked her in exchange for drugs. As a result of these

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events, Rachel B. stated that she turned to stripping and prostitution where she was

subjected to physical violence. After discussing her background, Rachel B. then

testified about her encounter with defendant in October of 2016.

While defendant objected to Rachel B.’s 404(b) testimony, he did not object to

the testimony concerning her abusive childhood, subsequent prostitution, and the

violence she experienced as a sex worker. This may have been part of defendant’s

trial strategy because defense counsel cross-examined Rachel B. regarding the

violence she experienced as a prostitute, probing beyond the State’s line of

questioning. Defendant now argues that this testimony was irrelevant and highly

prejudicial, such that it constitutes plain error.

But a defendant cannot raise the issue of plain error on appeal for evidence

which he elicited during cross-examination of the witness. See State v. Rivers, 324

N.C. 573, 575–76 (1989) (“It is clear . . . that the testimony of which the defendant

now complains was elicited by counsel for the defendant during cross-examination of

the witness and that he did not object to the testimony in any way or move to have it

stricken at trial. ‘Any error thus was invited and defendant cannot complain of such

error on appeal.’ ” (quoting N.C.G.S. § 15A-1443(c) (1988))).

Even so, “[i]t is elementary that when a witness has been sworn and takes the

stand, preliminary questions are properly put to him as to name, residence,

knowledge of the case, etc.” State v. Sports, 41 N.C. App. 687, 690, disc. rev. denied,

298 N.C. 205 (1979) (holding that evidence of a witness’s orphan status, epileptic

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history, scholarship assistances and summer employment was relevant for

“introductory and general purposes [and] as an explanation as to why the witness

was . . . walking home alone on the night in question”); see also 1 Kenneth S. Broun

et al., Brandis & Broun on North Carolina Evidence § 167 (8th ed. 2018).

Introductory evidence of a witness is relevant if it helps identify the witness, their

knowledge of the case at hand, or to give context as to why they were in a particular

situation. See Pittman v. Camp, 94 N.C. 283, 284–85 (1886) (“The question ‘where do

you live?’ . . . was not irrelevant, because it tended to identify the witness, and to

show in some slight degree, his opportunity to be informed in respect to the matter

about which he was testifying.”).

The reviewable portions of Rachel B.’s testimony relate to Rachel B. being

removed from her mother’s care at age ten, being sold out to men in exchange for

drugs by her mother, the incident of being secretly filmed by a family member, and

her living in group and foster homes for most of her childhood. This introductory

evidence—though lengthy—provided context to the jury for how Rachel B. crossed

paths with defendant on the night he attacked her and was relevant. As such, there

is no error. Moreover, because defendant failed to object at trial, we cannot review

this evidence for whether the risk of unfair prejudice substantially outweighed its

probative value under Rule 403. See Steen, 352 N.C. at 256.

2. Sentencing Phase

Keyona T. and Keyana M. were among the witnesses called during the

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sentencing phase, both of whom testified as to defendant’s prior violence against

them. Similar to the testimony of Rachel B. and Angel Holland, Keyona T. and

Keyana M. shared information with the jury regarding the difficult circumstances of

their childhoods before testifying about defendant’s violence against them.

Defendant objected to their background testimony as irrelevant and unfairly

prejudicial, preserving the issues for appeal.

But “[t]he rules of evidence do not apply in sentencing proceedings, and any

competent evidence which the court deems to have probative value may be received.”

State v. Augustine, 359 N.C. 709, 731 (2005) (cleaned up) (citing N.C.G.S. § 8C-1, Rule

1101(b)(3) (2003); N.C.G.S. § 15A-2000(a)(3) (2003)); see also State v. Smith, 352 N.C.

531, 557 (2000); State v. Atkins, 349 N.C. 62, 94 (1998). These less restrictive

standards afford the trial court “considerable leeway and discretion in governing the

conduct of a sentencing proceeding.” Smith, 352 N.C. at 557. “Evidence may be

presented as to any matter that the court deems relevant to sentenc[ing], and may

include matters relating to any of the aggravating or mitigating circumstances.”

State v. Golphin, 352 N.C. 364, 464 (2000) (quoting N.C.G.S. § 15A-2000(a)(3) (1999)).

Because of this considerable leeway, “trial courts are not required to perform the Rule

403 balancing test during a sentencing proceeding.” Id. (quoting State v. Flippen, 349

N.C. 264, 273 (1998), cert. denied, 526 U.S. 1135 (1999)). Further, during the

sentencing phase, “the jury is properly permitted to consider all the evidence

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presented during the guilt-innocence phase.” State v. Moseley, 338 N.C. 1, 41 (1994).4

a. Keyona T. & Keyana M.

The State called Keyona T. and Keyana M. to testify at the sentencing hearing

about their prior violent encounters with defendant. This evidence was presented to

establish the aggravating factor: “The murder for which the defendant stands

convicted was part of a course of conduct in which the defendant engaged and that

included the commission by the defendant of other crimes of violence against another

person or persons.” N.C.G.S. § 15A-2000(e)(11) (2023). However, before testifying

about the violence they had endured at defendant’s hands, both witnesses briefly

recounted details of their troublesome upbringings. On appeal, defendant contests

the admission of the background information as irrelevant and unfairly prejudicial.

Keyona T. testified that she was raised by her mother, but that her mother was

not present during her upbringing. Keyona T. stated that she was sexually abused

4 The dissent expresses disagreement with North Carolina’s established procedures

in the sentencing phase, preferring instead to limit consideration by the jury of relevant

evidence that may be beneficial in reaching a sentencing recommendation. Although the

dissent acknowledges that use of this evidence does not violate North Carolina law, the

dissent contends specifically that the death sentences here should be overturned. More

generally though, the dissent asserts that the sentencing scheme imposed by the General

Assembly and sanctioned by this Court should be cast aside based primarily on citation to

law review articles.

We also note that the dissent attempts to engage in a proportionality review of

defendant’s death sentence by incorporating arguments from his pretrial Motion to Strike

Death Penalty because the Death Penalty Violates the Evolving Standards of Decency in this

Community. This motion included a host of irrelevant information, including polling results.

The motion was denied by the trial court and defendant failed to object to the trial court’s

ruling. Defendant failed to preserve this argument, and the issue is not properly before the

Court. N.C. R. App. P. 28.

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by one of her mother’s boyfriends, and both she and her siblings were physically

abused by another. As a result, DSS removed Keyona T. from the home three times.

She further testified that she suffered from PTSD and became a prostitute after she

was forced to drop out of college. Ultimately, Keyona T. identified defendant in court

and testified about a violent encounter she had with him while she was a prostitute.

Keyana M. likewise discussed her difficult childhood before ultimately

testifying about a night when she was tied up, raped, and robbed by defendant at a

hotel. Keyana M. briefly testified that as a child, her parents left her to be raised by

her grandmother, and that around age twelve she was sexually assaulted. She then

stated that at around age eighteen, she began engaging in prostitution, which is how

she met defendant.

The challenged testimony was used to introduce each witness to the jury, and

it related to the aggravating circumstance under N.C.G.S. § 15A-2000(e)(11) as it

showed a course of conduct by defendant of engaging in violent acts against

vulnerable women and prostitutes. See Golphin, 352 N.C. at 464. Because of the

highly deferential standard in which trial courts are afforded “considerable leeway

and discretion” during the sentencing phase, we find no error. See Smith, 352 N.C.

at 557.

b. Permitted to Consider Evidence from Guilt Phase

Defendant argues that because the jury was told they could consider the

evidence from the guilt phase of trial during their sentencing deliberations, Gillard’s

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right to a fair capital sentencing hearing was undermined by the “the unfairly

inflammatory evidence of the traumatic and abusive backgrounds of Holland, [Rachel

B.], [Keyona T.], and [Keyana M.].”

But there is “nothing in the instant case to suggest that the jury’s decision to

recommend a sentence of death was based on any unfair prejudice that may have

been created by [admission of this evidence].” State v. Moody, 345 N.C. 563, 572

(1997). The trial court instructed the jury during the sentencing phase that “[a]ll of

the evidence which you hear[d] in both phases of the case is competent for your

consideration in recommending punishment.” Defendant did not object to this

instruction, and as such, this unpreserved claim is subject to plain error review. See

Reber, 386 N.C. at 158. However, because an instruction during the sentencing phase

“to consider all the evidence presented during the guilt-innocence phase,” Moseley,

338 N.C. at 41, is not erroneous, there can be no plain error. Reber, 386 N.C. at 158.

D. Admission of Photographic Evidence

Defendant next argues that the trial court abused its discretion in admitting

nine photos as part of nearly one hundred photos in the State’s Exhibit 3 over defense

counsel’s objection in light of other evidence admitted at trial. Specifically, defendant

argues that photos 63, 64, 66, 69, 70, 71, 72, 75, and 76 were “unnecessarily

repetitious and cumulative,” and that their probative value, in light of the rest of the

photos and the crime scene video, was so substantially outweighed by the danger of

inflaming the passions of the jury that they should have been excluded under Rule

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403. See N.C.G.S. § 8C-1, Rule 403.

When tasked with determining whether photographic evidence should be

admitted, “the trial court must weigh the probative value of the photographs against

the danger of unfair prejudice to defendant.” State v. Blakeney, 352 N.C. 287, 309

(2000) (citing State v. Goode, 350 N.C. 247, 258 (1999)). Because this determination

lies within the sound discretion of the trial court, “the trial court’s ruling should not

be overturned on appeal unless the ruling was manifestly unsupported by reason or

was so arbitrary that it could not have been the result of a reasoned decision.” Id.

(cleaned up).

Generally, “[p]hotographs of a homicide victim may be introduced even if they

are gory, gruesome, horrible or revolting, so long as they are used for illustrative

purposes and so long as their excessive or repetitious use is not aimed solely at

arousing the passions of the jury.” Hennis, 323 N.C. at 284 (citing State v. Murphy,

321 N.C. 738 (1988)). “The number of photographs alone is an insufficient measure

of their capacity to prejudice and inflame the jury.” State v. Phipps, 331 N.C. 427,

454 (1992). And while there is “no definitive test for the admissibility of photographs

alleged to be inflammatory and unduly prejudicial,” Mlo, 335 N.C. at 374, this Court

has discussed certain factors which may be helpful in making this determination.

“What a photograph depicts, its level of detail and scale, whether it is color or black

and white, a slide or a print, where and how it is projected or presented, the scope

and clarity of the testimony it accompanies,” Hennis, 323 N.C. at 285, and “whether

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the photographs are unnecessarily duplicative of other testimony,” Richardson, 385

N.C. at 133, must be considered when determining whether a photograph’s probative

value is substantially outweighed by its prejudicial impact.

This Court has emphasized that “[w]hen a photograph adds nothing to the

State’s case, then its probative value is nil, and nothing remains but its tendency to

prejudice.” Hennis, 323 N.C. at 286 (cleaned up) (quoting State v. Temple, 302 N.C.

1, 14 (1981)). However, the State is permitted to present, consistent with the rules,

evidence which it contends conveys a full perspective of the victim’s injuries and a

defendant’s actions. Thus, when photographs are admitted which show different

angles of a victim’s injuries and the surrounding crime scene, they are not

unnecessarily duplicative and excessive—even if similar—so long as they contribute

individual value to the State’s case. See State v. Kandies, 342 N.C. 419, 443 (1996)

(multiple photographs, including autopsy photographs, were admissible to show

“various angles of the lacerations to the head as well as the injuries to the vaginal

area and properly illustrated the nature of the wounds and the manner of killing”);

Richardson, 385 N.C. at 139–46 (holding that eighty-eight photographs of a victim’s

body were admissible because they “accurately reflected the reality of the crimes with

which [the] defendant was being tried and were probative to the issues before the

jury”); State v. Pierce, 346 N.C. 471, 488 (1997) (“Given the number, nature, and

extent of the victim’s injuries . . . the trial court did not abuse its discretion by

admitting twenty-six photographs of the victim’s body.”); State v. Haselden, 357 N.C.

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1, 16 (2003) (“[E]ach photograph was taken at a different angle, offering a unique

perspective on the nature and location of [the victim]’s wounds.”).

Defendant argues that photos 63, 64, 66, 69, 70, 71, 72, 75, and 76 in State’s

Exhibit 3 were unnecessarily repetitive and cumulative because other evidence

presented at trial showed that Holland was found naked by the door of the hotel room,

that her cause of death was a bullet wound to the chest, and that shell casings were

found near her body. Ultimately, defendant asserts that because these photographs

“depicted substantially the same scene” as other photographs, their probative value

was “nil.” We disagree.

At trial, the State presented all of the color photographs by displaying a

PowerPoint onto a small television for the jury to view. Photographs 63 and 64 were

not unnecessarily duplicative of photograph 62. Photograph 62 was taken from the

hallway into the hotel room, and illustrated how Holland’s body was partially

blocking the door upon entry into the room. Photograph 63 was the first close-up of

Holland’s body lying in a pool of blood, which demonstrated the scene that first-

responders observed upon arrival. Photograph 64 was a different angle from both 62

and 63 and was used to illustrate the distance between Holland’s body and the main

portion of the hotel room where the bed was located.

We likewise reject defendant’s argument that photograph 66 was

unnecessarily duplicative of photograph 65. Photograph 65 provided an all-

encompassing view of Holland’s body and surrounding footprints, whereas

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photograph 66 only showed a portion of Holland’s body and zoomed in on the

footprints found in the blood next to Holland’s body.

Further, photographs 69, 70, and 71, while similar, demonstrated different

angles of Holland’s injuries. Photograph 69 was a close-up of the bullet wound and

surrounding blood splatter on Holland’s chest and was the only close-angle

photograph taken of Holland’s chest at the crime scene. Photograph 70 was a close-

up of the bullet wound to Holland’s face and did not show Holland’s chest at all.

Photograph 71 was taken from a side-angle and illustrated both bullet wounds and

their locations in relation to each other.

Finally, photographs 72, 75, and 76 were properly admitted as well.

Photograph 72 depicted Holland’s body relative to the discovery of a shell casing

between her body and the door. Photograph 75 depicted crime scene markers placed

beside the footprints in the blood to the right of Holland’s body, and photograph 76

depicted a marker placed beside an additional footprint which was discovered by the

door.

The trial court overruled defendant’s objection to these photographs,

determining that it was “satisfied that each [photograph had] independent

evidentiary value that shows the different angles or provides scale, distances, location

of items of evidence, and specifically what the officers observed when they were on

the scene.” Thus, these photographs provided sufficiently distinct information of

independent value to the State’s case, making them neither unnecessarily duplicative

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nor excessive, see Kandies, 342 N.C. at 443, and the admission of these photographs

was not “manifestly unsupported by reason or . . . so arbitrary that it could not have

been the result of a reasoned decision.” Blakeney, 352 N.C. at 309 (cleaned up).

E. Failing to Dismiss Charges for First-Degree Murder of Holland

Defendant next argues that the trial court erred by denying defendant’s motion

to dismiss the charge of first-degree murder against Holland on both theories of felony

murder and premeditation and deliberation on the basis of insufficient evidence. The

trial court denied this motion, and defendant was thereafter found guilty of first-

degree murder of Holland on both theories. We address each theory in turn.

When ruling on a motion to dismiss, “the trial court need determine only

whether there is substantial evidence of each essential element of the crime and that

the defendant is the perpetrator.” State v. Golder, 374 N.C. 238, 249 (2020) (quoting

State v. Winkler, 368 N.C. 572 (2015)). Put another way, “[i]f there is more than a

scintilla of competent evidence to support the allegations in the warrant or

indictment, it is the court’ s duty to submit the case to the jury.” State v. Horner, 248

N.C. 342, 344–45 (1958). “The terms ‘more than a scintilla of evidence’ and

‘substantial evidence’ are in reality the same and simply mean that the evidence must

be existing and real, not just seeming or imaginary.” State v. Earnhardt, 307 N.C.

62, 66 (1982).

The trial court must consider the evidence “in the light most favorable to the

State, giving the State the benefit of all reasonable inferences.” State v. Fritsch, 351

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N.C. 373, 378–79 (2000). “In other words, if the record developed at trial contains

substantial evidence, whether direct or circumstantial, or a combination . . . the case

is for the jury and the motion to dismiss should be denied.” Golder, 374 N.C. at 250

(cleaned up). Whether the State presented substantial evidence to support each

element of a crime is a question of law, and thus, we review a trial court’s denial of a

motion to dismiss de novo. Id.

1. Felony Murder

Defendant first argues that there was insufficient evidence to prove that

Holland was murdered during the commission of an attempted rape or robbery.

Specifically, defendant contends that the State failed to show that he intended to rape

or rob Holland and the use of circumstantial evidence under Rule 404(b) could not

remedy this alleged error.

A killing which is “committed in the perpetration or attempted perpetration of

any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony

committed or attempted with the use of a deadly weapon shall be deemed to be

murder in the first degree.” N.C.G.S. § 14-17(a) (2023). As is relevant here, “[t]he

elements of an attempt to commit a crime are: (1) the intent to commit the substantive

offense, and (2) an overt act done for that purpose which goes beyond mere

preparation, but (3) falls short of the completed offense.” State v. Baker, 369 N.C.

586, 595 (2017) (cleaned up).

Because “[i]ntent is an attitude or emotion of the mind and is seldom, if ever,

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susceptible of proof by direct evidence, it must ordinarily be proven by circumstantial

evidence, i.e., by facts and circumstances from which it may be inferred.” State v.

Gammons, 260 N.C. 753, 756 (1963). This Court has upheld the use of Rule 404(b)

evidence for proving the intent of a defendant to commit an underlying felony. See

State v. Williams, 355 N.C. 501, 581–82 (2002) (affirming a trial court’s denial of

defendant’s motion to dismiss when, among other things, “Rule 404(b) evidence

tended to show that defendant lured his victims to isolated locations where he would

assault them . . . while raping or attempting to rape them”); Al-Bayyinah, 359 N.C.

at 748 (evidence of a defendant’s statement that he “wanted to go back to prison” was

“substantially probative of defendant’s motive and intent” to commit the underlying

robbery).

Further, in proving an overt act, the State must demonstrate that a defendant

has taken a “direct movement towards the commission [of the offense] after the

preparations are made.” State v. Melton, 371 N.C. 750, 760 (2018) (cleaned up)

(emphasis added). This threshold has been defined as a “subsequent step in a direct

movement towards the commission of the offense after the preparations are made,”

but it need not be “the last proximate act” before the crime occurs. Id. at 757 (quoting

State v. Miller, 344 N.C. 658, 668 (1996)). Instead, it is sufficient once a defendant

has “begun to execute the criminal design that he helped concoct.” Id. at 762 (cleaned

up).

We turn first to the attempted crime of rape. To prove intent, the State must

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produce evidence that the “defendant intended to gratify his passion on the person of

the woman.” Gammons, 260 N.C. at 755. “Sexual intent may be proved

circumstantially by inference, based upon a defendant’s actions, words, dress, or

demeanor.” State v. Cooper, 138 N.C. App. 495, 498 (2000) (citing State v. Robbins,

99 N.C. App. 75, 80, aff’d, 327 N.C. 628 (1990)). Giving the State the benefit of all

reasonable inferences based on the evidence presented at trial, a reasonable juror

could believe that defendant intended to rape Holland on the night she was murdered.

First, contrary to defendant’s assertion, 404(b) evidence may be considered

when determining whether the State has presented sufficient evidence of a

defendant’s intent to commit an underlying crime. See Williams, 355 N.C. at 581–

82. Here, Bessie A.’s and Rachel B.’s 404(b) testimonies demonstrated that defendant

had a common scheme or plan to rape and rob prostitutes. This plan began with

either defendant or Hill contacting the women over Backpage, posing as an individual

man seeking sexual services, and ended with both men arriving at low-budget hotels

armed with pistols, forcing the women to undress, tying them up, and raping them.

In addition to the 404(b) evidence, the State also provided evidence that on the

morning Holland and Garvey were murdered, defendant sent a text to Hill after

setting up his appointment with Holland that he had “got one.” Considering the

evidence in the light most favorable to the State and giving it all reasonable

inferences, a reasonable juror could accept that defendant intended to rape Holland

before he was interrupted by Hill’s shooting of Garvey in the hallway.

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Next, based on this same evidence, a rational juror could believe that

defendant intended to rob Holland prior to being interrupted by the shooting of

Garvey. “An attempted robbery with a dangerous weapon occurs when a person, with

the specific intent to unlawfully deprive another of personal property by endangering

or threatening his life with a dangerous weapon, does some overt act calculated to

bring about this result.” Miller, 344 N.C. at 667–68 (quoting State v. Allison, 319

N.C. 92, 96 (1987)).

Bessie A.’s and Rachel B.’s 404(b) evidence demonstrated that defendant had

a particular scheme or plan associated with raping and robbing prostitutes. Both

Rachel B. and Bessie A. testified that they were forced to undress, were tied up with

bedsheets, and were raped by the men, who would rummage through the women’s

personal items either before or after raping them.5 While there was no direct evidence

that Holland’s personal items had been pillaged through or taken, this is not a

requirement for proving intent. See State v. Davis, 340 N.C. 1, 12–13 (1995)

(concluding that intent existed even though defendant did not demand money or take

any money or valuables from the scene after shooting the victim).

Defendant entered the room with a loaded weapon and a sheet was found near

5 The dissent takes issue with the admission of what it terms, “unadjudicated offenses” under

Rule 404(b), even though the dissent concedes that use of this evidence does not violate any

rule or statute. Instead, the dissent relies on two law review articles in an effort to impose a

new per se restriction on the use of relevant evidence. But the simple fact that an individual

was not charged with an offense or convicted of a crime does not mean that the incident did

not occur. Rule 404(b) thus focuses on logically connected conduct, not convictions.

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Holland’s body, evidence from which the jury could infer that defendant was

executing a similar plan as he had before with Bessie A. and Rachel B. Additionally,

at the time that the murders occurred, defendant had only been in Holland’s room for

approximately four minutes, suggesting that had Garvey not interrupted and

subsequently been shot by Hill, defendant and Hill would have proceeded with the

robbery and rape of Holland. Thus, considering this evidence in the light most

favorable to the State and giving it the benefit of every reasonable inference, the State

provided substantial evidence of defendant’s intent to rob Holland with his firearm

on the night she was murdered.

Finally, the State’s evidence also demonstrated defendant’s overt acts toward

the commission of both the attempted rape and robbery of Holland. Defendant argues

that although his scheduling of the meeting with Holland, his arrival at the hotel,

and his entry of the room support a finding that he “devised the means necessary for

the commission of the offense,” it was only proof of mere preparation, not the overt

act.

However, defendant’s actions went beyond mere preparation. Defendant and

Hill traveled to the hotel armed with weapons, and surveillance footage showed

defendant and Hill pacing in the hallway outside of Holland’s room, engaging in a

brief discussion. Even if we assume defendant’s travel to the hotel did not constitute

an overt act, defendant’s entry into Holland’s room was a “direct movement towards

the commission of the offense” necessary to constitute an overt act, Melton, 371 N.C.

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at 757 (cleaned up), as it would have “result[ed] in the commission of the offense in

the ordinary and likely course of things.” Id. at 762 (cleaned up). As such, defendant’s

argument is without merit.

2. Premeditated Murder

In addition to felony murder, the jury was also instructed on the theory of

premeditation and deliberation. Defendant asserts that because the killing of Garvey

and Holland “lasted less than 30 seconds,” there was no time for him to sufficiently

“weigh the consequences of his actions” to deem this premeditated and deliberate. As

such, he asserts there was insufficient evidence for this theory to be submitted to the

jury. We disagree.

“First-degree murder is the intentional and unlawful killing of a human being

with malice and with premeditation and deliberation.” State v. Thomas, 350 N.C.

315, 346 (1999). “[M]alice is presumed where the defendant intentionally assaults

another with a deadly weapon, thereby causing the other’s death.” State v. McNeill,

346 N.C. 233, 238 (1997). Premeditation occurs when “the act was thought over

beforehand for some length of time, however short.” State v. Leazer, 353 N.C. 234,

238 (2000) (cleaned up). A killing is deliberate when it is “carried out in a cool state

of blood” and is not “under the influence of a violent passion, suddenly aroused by

legal provocation or lawful or just cause.” State v. Trull, 349 N.C. 428, 448 (1998).

Because premeditation and deliberation are “mental processes that are not

readily susceptible to proof by direct evidence,” they are often proven through

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circumstantial evidence. State v. Childress, 367 N.C. 693, 695 (2014) (quoting State

v. Sierra, 335 N.C. 753, 758 (1994)). This Court has provided examples of evidence

which may support a finding of premeditation and deliberation, including the absence

of provocation on the part of the deceased, the nature and number of the victim’s

wounds, a defendant’s arrival at the scene with a weapon, and whether a defendant

discharged or otherwise utilized a weapon multiple times. See Childress, 367 N.C. at

695–96; State v. Olson, 330 N.C. 557, 565 (1992); State v. Taylor, 362 N.C. 514, 531

(2008). Further, “lack of provocation by the victim supports an inference of

premeditation and deliberation.” Miller, 339 N.C. 663, 682 (1995); see also Olson, 330

N.C. at 565.

Here, there was more than sufficient evidence for the charge of first-degree

murder on the basis of premeditation and deliberation to be submitted to the jury.

To begin, malice is “presumed” because defendant’s shooting of Holland was

intentional. See McNeill, 346 N.C. at 238. Further, defendant arrived at the hotel

with a loaded weapon, suggesting not only that he anticipated the potential need to

use the weapon, but also that he was prepared to use it. See Taylor, 362 N.C. at 531.

In addition, there was no provocation on the part of Holland as she was

unarmed at the scene and surveillance footage did not show that she posed any threat

to defendant. See Childress, 367 N.C. at 695. Defendant ultimately fired two shots

at Holland, one striking her in the face and the other in the chest, with each shot

sufficient to demonstrate an intent to kill on the part of defendant. See Olson, 330

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N.C. at 565–66 (concluding that evidence that “the wounds were fatal in nature”

supported a finding of premeditation and deliberation); State v. DeGregory, 285 N.C.

122, 130 (1974) (“The deadly shots through the heart after each victim had been

felled . . . almost require[ ] the legitimate inference of premeditation and

deliberation.”). Given the extent of this evidence and viewing it in the light most

favorable to the State, a rational juror could have concluded that defendant’s killing

of Holland was premeditated and deliberate, and therefore, defendant’s argument is

without merit.

F. Failing to Dismiss Charges for First-Degree Murder of Garvey

Defendant argues that the trial court erred by failing to dismiss the first-

degree murder charge against him for co-defendant Hill’s killing of Garvey on the

theories of felony murder and premeditation and deliberation. Defendant contends

that the State failed to provide substantial evidence that defendant and Hill were

acting in concert when Hill shot and killed Garvey.

“The acting in concert doctrine allows a defendant acting with another person

for a common purpose of committing some crime to be held guilty of a murder

committed in the pursuit of that common plan . . . .” State v. Roache, 358 N.C. 243,

306 (2004). Concert of action may “be shown by circumstances accompanying the

unlawful act and conduct of the defendant subsequent thereto.” In re J.D., 376 N.C.

148, 156 (2020) (cleaned up).

In State v. Blankenship, this Court, straying from over 160 years of established

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precedent on acting in concert, held that “one may not be criminally responsible under

the theory of acting in concert for a crime like premeditated and deliberated murder,

which requires specific intent, unless he is shown to have the requisite specific

intent.” 337 N.C. 543, 558 (1994). Nonetheless, just three years later in State v.

Barnes, this Court explicitly overruled Blankenship and returned to the “well

established principle” that where

two persons join in a purpose to commit a crime, each of

them . . . is not only guilty as a principal if the other

commits that particular crime, but he is also guilty of any

other crime committed by the other in pursuance of the

common purpose or as a natural or probable consequence

thereof.

345 N.C. 184, 232–33 (1997) (cleaned up) (emphasis added).

Defendant asks this Court to overrule Barnes and reinstate Blankenship. But

Blankenship was an outlier, and we decline defendant’s invitation to abandon the

“well established principle” in Barnes.

1. Felony Murder

The State presented sufficient evidence that defendant and Hill had engaged

in a common plan or scheme to commit rape and robbery with a dangerous weapon

against Holland through the State’s Rule 404(b) evidence. Even though Garvey was

not the intended victim of this common scheme or plan, he was killed in pursuit

thereof. Because a defendant can be “held guilty of a murder committed in the

pursuit of [a] common plan,” Roache, 358 N.C. at 306, we conclude that the trial court

properly submitted this issue to the jury.

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2. Premeditated Murder

Defendant also argues that the State failed to produce sufficient evidence that

he intended to kill Garvey, and that the trial court erred by submitting the charge of

first-degree murder on the theory of premeditation and deliberation to the jury.

During execution of the plan to rape and rob Holland, Garvey sought to

intervene and was shot and killed by Hill in the hallway. The surveillance footage

showed Hill threaten Garvey with the gun, and he ultimately fired nine rounds at

Garvey, despite Garvey putting his hands in the air in submission. Hill’s violence

against Garvey was unprovoked, Garvey was unarmed, and nine separate rounds

were fired by Hill, with multiple gunshot wounds to Garvey’s body. Thus, the

evidence demonstrates that Garvey’s murder resulted from premeditation and

deliberation on the part of Hill. See Leazer, 353 N.C. at 238; Barnes, 345 N.C. at 233.

It is certainly foreseeable that a prostitute would have another individual

monitoring business-related activity for safety and protection. Regardless of whether

defendant knew of Garvey’s presence, because Garvey’s murder occurred in the

pursuit of and as a natural and probable consequence of defendant and Hill’s plan to

rob and rape Holland, this charge was properly submitted to the jury. Barnes, 345

N.C. at 233.

G. Finding of the Aggravating Circumstance that the Murders were

Committed During the Commission of an Attempted Rape and Attempted

Robbery

Defendant next argues that the State’s evidence was insufficient to submit the

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aggravating circumstance that the murders occurred during the “commission of, or

flight after committing, the Attempted First-Degree Rape of April Holland and the

Attempted Robbery with a Firearm of April Holland” to the jury. Defendant again

contends that because the State’s evidence was insufficient to demonstrate an

attempted rape or armed robbery of Holland, it was similarly insufficient to submit

this aggravating factor to the jury during the sentencing phase of trial.

Defendant failed to object to the introduction of this aggravating circumstance.

Rule 10(a)(1) of the North Carolina Rules of Appellate Procedure ordinarily requires

that a party present “to the trial court a timely request, objection, or motion, stating

the specific grounds for the ruling” in order to preserve an issue for appellate review.

N.C. R. App. P. 10(a)(1). However, despite defendant’s failure to object, this issue is

nonetheless preserved for appeal pursuant to State v. Canady, 330 N.C. 398 (1991),

and State v. Meadows, 371 N.C. 742 (2018), because the trial court knew or should

have known that defendant was contesting the aggravating factor. Canady, 330 N.C.

at 402 (holding that the issue was preserved because “[t]he defendant did not want

the court to find the aggravating factor and the court knew or should have known it”);

Meadows, 371 N.C. at 746–47 (holding that the sentencing issue was preserved

because “the danger of gamesmanship was not present” and “the sentencing court

knew or should have known defendant sought the minimum possible sentence”

(cleaned up)).

But, again, the evidence of the attempted rape and armed robbery of Holland

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was sufficient for its submission to the jury as an aggravating factor. Subsection 15A-

2000(e)(5) of our General Statutes permits the jury to find as an aggravating factor

that “[t]he capital felony was committed while the defendant was engaged, or was an

aider or abettor, in the commission of, or an attempt to commit, or flight after

committing or attempting to commit, any homicide, robbery, [or] rape.” N.C.G.S. §

15A-2000(e)(5) (2023). The evidence presented by the State, discussed at length

above, was sufficient to persuade a rational juror that the murders occurred while

the defendant was engaged in the commission of an attempted rape and armed

robbery.

H. Trial Court’s Failure to Submit the Enmund/Tison Issue to the Jury for

the Murder of Garvey

Next, defendant argues that because he did not kill Garvey, the trial court

erred by failing to submit an instruction to the jury under Enmund v. Florida, 458

U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137 (1987). Because defendant failed

to request the Enmund/Tison instruction, he is limited to plain error review.

Golphin, 352 N.C. at 472; N.C. R. App. P. 10(c)(4).

This Court has succinctly explained the culpability requirements which the

jury must consider for imposition of the death penalty as established by Enmund and

Tison:

In Enmund, the United States Supreme Court held

that the Eighth Amendment forbids the imposition of the

death penalty on a defendant who aids and abets in the

commission of a felony in the course of which a murder is

committed by others, when the defendant does not himself

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kill, attempt to kill, or intend that a killing take place or

that lethal force will be employed. In a later case [Tison],

however, the Court further construed its holding in

Enmund and held that major participation in the felony

committed, combined with reckless indifference to human

life, is sufficient grounds for the imposition of the death

penalty.

Golphin, 352 N.C. at 473 (cleaned up).6

The defendant in Enmund was the getaway driver for co-defendants who shot

and killed two victims and robbed them of their money. It was undisputed that the

defendant was not present at the time of the robbery and murder. Enmund, 458 U.S.

at 786, 788. The Supreme Court determined that imposition of the death penalty on

those who had not manifested an intent to kill violates the Eighth Amendment. Id.

at 798 (“The question before us is not the disproportionality of death as a penalty for

murder, but rather the validity of capital punishment for [defendant]’s own conduct.

The focus must be on his culpability, not on . . . those who . . . shot the victims . . . .”).

The facts in Tison, however, are similar to those of the case sub judice. There,

three brothers helped their father and another inmate escape from prison. Tison, 481

U.S. at 139. The group robbed and abducted a family in a highway encounter in the

Arizona desert. Id. at 139–40. The father and inmate then killed the family of four,

while the brothers watched, but declined to help the victims. Id. at 141.

6 The dissent incorrectly suggests that Enmund-Tison is an “and” test, rather than an “or”

test. A defendant is not required to meet the intent requirement in Enmund and the major

participant and reckless indifference requirements in Tison. Either is sufficient to satisfy

state and federal constitutional concerns.

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The Supreme Court stated that merely looking at a defendant’s intent to kill

for Eighth Amendment purposes

is a highly unsatisfactory means of definitively

distinguishing the most culpable and dangerous of

murderers. Many who intend to, and do, kill are not

criminally liable at all—those who act in self-defense or

with other justification or excuse . . . . On the other hand,

some nonintentional murderers may be among the most

dangerous and inhumane of all—the person who tortures

another not caring whether the victim lives or dies, or the

robber who shoots someone in the course of the robbery,

utterly indifferent to the fact that the desire to rob may

have the unintended consequence of killing the victim as

well as taking the victim’s property. This reckless

indifference to the value of human life may be every bit as

shocking to the moral sense as an ‘intent to kill.’ . . . [W]e

hold that the reckless disregard for human life implicit in

knowingly engaging in criminal activities known to carry a

grave risk of death represents a highly culpable mental

state, a mental state that may be taken into account in

making a capital sentencing judgment when that conduct

causes its natural, though also not inevitable, lethal result.

Tison, 481 U.S. at 157–58.

Both Enmund and Tison “explore[ ] the degree of culpability necessary for the

imposition of capital punishment in cases involving felony-murder convictions.”

Gilson v. Sirmons, 520 F.3d 1196, 1212 (10th Cir. 2008). While Enmund focuses on

the intent of minor participants, Tison is more concerned with “the intermediate case

of the defendant whose participation is major and whose mental state is one of

reckless indifference to the value of human life.” Tison, 481 U.S. at 152. The

Supreme Court essentially concluded that major participation in felonious conduct in

which there is a significant risk of death is no different for Eighth Amendment

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purposes than the intent to kill issue that Enmund confronted. See Ross v. Davis, 29

F.4th 1028, 1043–44 (9th Cir.), cert. denied sub nom. Ross v. Bloomfield, 143 S. Ct.

375 (2022) (holding that the Eighth Amendment allows the death penalty to be

imposed on “felony murderers” (1) “who actually killed, attempted to kill, or intended

to kill,” or (2) “whose participation in the felony is major and whose mental state is

one of reckless indifference to the value of human life.” (cleaned up)).

Consistent with the direction from the Supreme Court, this Court has clarified

that an Enmund/Tison instruction is not required when a defendant is “found . . .

guilty of first-degree murder on the basis of premeditation and deliberation under the

theory that [he] committed all the elements or that he acted in concert.” Golphin,

352 N.C. at 473. See also State v. Fletcher, 354 N.C. 455, 479 (2001); State v. Gaines,

345 N.C. 647, 682 (1997). Moreover, in State v. Robinson, this Court determined that

an Enmund/Tison instruction is not required when a defendant is convicted “of first-

degree murder upon the theory of premeditation and deliberation in addition to the

felony murder theory.” 342 N.C. 74, 88 (1995).

Here, as noted above, defendant was convicted of first-degree murder for the

killing of Garvey based on both theories of felony murder and premeditation and

deliberation. Unlike the defendant in Enmund, here, defendant was not a minor

participant. Rather, like the brothers in Tison, he was a major participant in criminal

conduct known to carry a grave risk of death. Defendant was actively involved in

planning, arranging, and perpetrating an armed, violent felony that was likely to

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result in the loss of life. In addition to possessing and using a firearm, defendant was

physically present throughout the commission of these violent crimes, and his

conduct was part of a prolonged criminal scheme.

Therefore, even if we assume that the trial court erred, defendant has not

demonstrated plain error because a rational juror could find that defendant was not

merely a minor participant in the crimes detailed herein.7 The United States

Supreme Court in Tison noted that there was “apparent consensus that substantial

participation in a violent felony under circumstances likely to result in the loss of

innocent human life may justify the death penalty even absent an ‘intent to kill.’ ”

481 U.S. at 154 (cleaned up). As stated above, defendant was “a major participa[nt]

in the felony committed” and demonstrated “a reckless indifference to human life,

[which] is sufficient to satisfy the Enmund culpability requirement.” Id. at 158.

“[T]he reckless disregard for human life implicit in knowingly engaging in criminal

activities known to carry a grave risk of death represents a highly culpable mental

state, a mental state that may be taken into account in making a capital sentencing

7 We also note that the trial court provided the jury with an instruction on malice.

Specifically, the trial court informed the jury, “Malice means not only hatred, ill will, or spite,

as it is ordinarily understood. To be sure, that is malice. But it also means the condition of

mind which prompts a person to take the life of another intentionally or to intentionally

inflict serious bodily harm which proximately results in another person’s death without just

cause, excuse, or justification.” Thus, though not required for the reasons stated above, the

trial court instructed the jury on the substance of an Enmund/Tison instruction. See State

v. Augustine, 359 N.C. 709, 729 (2005) (holding that an instruction to the jury is sufficient if

the substance of the instruction is provided).

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judgment . . . .” Id. at 157–58. Defendant’s actions underscore the notion that “the

more purposeful is the criminal conduct, the more serious is the offense, and,

therefore, the more severely it ought to be punished.” Id. at 156.

Thus, any purported error did not have a probable impact on the outcome of

his sentencing hearing and cannot satisfy the plain error standard set forth in Reber.

I. Jury Instructions Regarding the Use of the Same Evidence to Support

More Than One Aggravating Factor

Defendant next argues that the trial court erred by failing to instruct the jury

that it could not use the same evidence to support more than one aggravating factor.

Defendant failed to request that the jury be given this instruction, and as such, he

must show plain error. See Lawrence, 365 N.C. at 518.

“In a capital case the trial court may not submit multiple aggravating

circumstances supported by the same evidence.” State v. Lawrence, 352 N.C. 1, 29

(2000). “This Court has held that the trial court should instruct the jury that it cannot

use the same evidence as a basis for finding more than one aggravating

circumstance.” State v. Conaway, 339 N.C. 487, 530 (1995). However, “[a]ggravating

circumstances are not considered redundant absent a complete overlap in the

evidence supporting them.” State v. Moseley, 338 N.C. 1, 54 (1994) (emphasis added).

Moreover, a

trial court’s failure to instruct the jury that it could not use

the same evidence to support more than one aggravating

circumstance does not rise to the level of plain error. . . .

[When there is] substantial separate evidence supporting

each aggravating circumstance, it is improbable that the

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jury would have reached a different result . . . .

Conaway, 339 N.C. at 531.

Here, the trial court instructed the jury that it could consider the subsection

(e)(5) and subsection (e)(11) aggravating circumstances, and while these two

aggravating factors are supported by similar evidence, there was not a complete

overlap. See N.C.G.S. § 15A-2000(e)(5), (11). The subsection (e)(5) aggravating

factor—that the murders of Holland and Garvey occurred during the attempt or flight

after the attempt to commit first-degree rape or armed robbery against Holland—was

supported by the 404(b) evidence of defendant’s prior rapes and robberies of Bessie

A. and Rachel B. under similar circumstances. Even though defendant’s attempt to

rape and rob Holland fell short of completion, additional facts, such as defendant’s

confirmation text to Hill that he had “got[ten] one” and the bedsheet found on the

floor beside Holland’s body, suggested that these killings occurred during the attempt

and/or flight from the attempted rape and robbery of Holland.

On the other hand, the subsection (e)(11) factor—that the murders of Holland

and Garvey were part of a course of conduct in which defendant was engaged—was

supported by substantial separate evidence from additional victims that were

subjected to the ongoing course of conduct that defendant was similarly engaged in

on the night Holland and Garvey were murdered. Specifically, in both the guilt and

sentencing phases of trial, the State presented evidence of additional women, Kara

L., Keyona T., Keyana M., Serena S., and Asia G., all of whom were victimized by

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defendant.

At trial, Kara L. testified that she had consensual relations with defendant

until it turned violent with defendant holding a gun to her mouth threatening to kill

her and her family. During the sentencing phase, Keyona T. testified that while

prostituting herself at a low-budget hotel, she was attacked and tied up, sexually

assaulted, and robbed by defendant and Hill. Keyana M. testified to a similar

experience with defendant, stating that she was tied up with a phone cord, raped,

and robbed of her personal possessions and money by defendant and his companion.

Also, Serena S. testified that she was contacted by a single man but then was attacked

by two armed men at the hotel, who tied her up and forced her to contact additional

male clients whom the perpetrators could rob, and then was robbed herself. Asia G.

testified that on the same morning Serena S. was attacked, she was tied up and

robbed by defendant’s companion, Hill, while defendant remained in the room with

Serena S.

Therefore, while the 404(b) evidence of defendant’s prior rapes and robberies

of Bessie A. and Rachel B. was used to support aggravating circumstances under

subsections (e)(11) and (e)(5), the subsection (e)(11) factor was supported by

substantial additional evidence, and there is no error.

J. Trial Court’s Denial of Defendant’s Motion to Suppress Keyona T.’s In-

Court Identification

Defendant next argues that the trial court erred in denying his motion to

suppress Keyona T.’s identification of defendant in court. Specifically, defendant

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contends that Keyona T.’s in-court identification violated his due process rights.

Keyona T. testified during the sentencing phase that while working as a

prostitute out of a low-budget motel in April of 2016, her friend, Lynda P., who was

also working as a prostitute, was contacted by a man who set up an appointment with

Lynda P. Keyona T. stated that her motel room shared a wall with Lynda P.’s and

that as soon as the “client” arrived, she heard knocking and beating sounds coming

from Lynda P.’s room. A few minutes later, two men entered Keyona T.’s room with

Lynda P., holding Lynda P. at gunpoint. The two men forced Keyona T. and Lynda

P. to undress, tied their hands with pillowcases, began rummaging through Keyona

T.’s belongings, and then one of the men sexually assaulted her with a firearm.

Keyona T. stated that she reported this incident to the police, but no action was ever

taken.

Before Keyona T. testified at defendant’s sentencing hearing, the trial court

allowed voir dire regarding her identification of defendant. Keyona T. testified that

in December of 2018, she was contacted about the incident by Detective Eric Gibney

with the Raleigh Police Department. Gibney informed Keyona T. that he was

investigating a homicide that might have been related to her earlier reported attack,

and he described the crime as involving a pregnant mother and a father who had been

killed. Keyona T. testified that Gibney did not show her a lineup or any photos of

defendant but that he gave her a name of someone involved in the crime. Keyona T.

stated that after her conversation with Gibney, she researched the crime on her own.

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Keyona T. stated that she recognized defendant in the Google photos based on his

“familiar face” from her previous encounter with him.

At the close of the voir dire, defendant objected to Keyona T. testifying at the

sentencing hearing, arguing that the “government action . . . taint[ed] the

identification in this case” and that it was not reliable. The trial court determined

that Keyona T. was permitted to testify, as she “took it upon herself to . . . view the

newspaper and, in looking at the photograph that was published in connection with

this story, . . . she believed [defendant] was the person that committed these offenses,”

but the court reserved ruling on Keyona T.’s in-court identification.

At the sentencing hearing, Keyona T. testified to many of the same facts as she

did on voir dire. In addition, she stated that she did not know defendant’s name but

that one of the perpetrators had an “island accent.” Keyona T. also testified that she

recognized defendant in the photos based on his “eyes and . . . nose,” and knew him

to be the man with the island accent who had sexually assaulted her and robbed her

in April of 2016. Defendant’s renewed objection to Keyona T.’s in-court identification

was overruled. The trial court stated:

I’m going to allow the in-court identification. I first find

that the circumstances of this witness viewing the

photograph were not the result of State action and so that

there was no constitutional violation occasioned by that

procedure.

Secondly, the witness had significant opportunity to

view the defendant or the perpetrator of the April 2016

events clearly, and she on her own accord viewed

photographs in news media accounts and was able to

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identify the defendant.

In listening to her testimony, I infer that the

identification was relatively certain. She described the

features that she found to be distinctive. It is also — the

reliability of that identification is also bolstered by the fact

that the person she identified also has a distinctive island

accent, as was elicited from prior testimony. So I find this

goes to the weight, not the admissibility that safeguards

the cross-examination and instructions to the jury about

the — I will instruct the jury during the charge that it is

the State’s burden to identify the defendant as the

perpetrator of these alleged acts that are used in the

sentencing phase beyond a reasonable doubt. I will so

instruct the jury with respect to that.

And for all of those reasons, I believe that the

safeguards that are inherent in our adversarial trial

process are sufficient to test the reliability of her

identification in this case. So I’m going to allow the in-court

identification.

As a general rule, the reliability of evidence is for the jury, not the trial court,

to decide. State v. Malone, 373 N.C. 134, 146 (2019). However, “due process

considerations do place limitations upon the admission of eyewitness identification

evidence obtained as the result of impermissible official conduct.” Id. When tasked

with determining whether impermissible official conduct has occurred, a court must

“utilize a two-step process.” Id. First, the court must “determine whether the

identification procedures were impermissibly suggestive.” State v. Fowler, 353 N.C.

599, 617 (2001). If so, the court must then determine “whether the procedures created

a substantial likelihood of irreparable misidentification.” Id. However, a court need

not reach this two-step analysis if it first determines that the witness’s pretrial

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identification of the defendant did not arise from State action, as “suggestive pretrial

identification procedures that do not result from state action do not violate [a]

defendant’s due process rights.” State v. Fisher, 321 N.C. 19, 24 (1987).

Here, Detective Gibney did not show Keyona T. photographs of defendant, he

did not refer her to any news articles containing defendant’s pictures, he did not

instruct nor encourage Keyona T. to conduct her own research, nor was he present or

on the phone with Keyona T. when she researched the crime. Rather, Gibney merely

provided a vague overview of the crimes committed against Holland and Garvey and

informed Keyona T. that evidence from her reported attack had been recovered. And

as Keyona T. confirmed in her testimony, “[she] looked it up on [her] own.” Thus,

given the attenuation between Gibney’s phone call with Keyona T. and her

subsequent independent research, Keyona T.’s identification was not a result of State

action and does not violate defendant’s due process rights. Questions concerning

Keyona T.’s identification go to the weight to be given to her testimony, not its

admissibility, and defendant’s argument is without merit.

K. Trial Court’s Final Mandate for First-Degree Murder

Defendant next argues that the trial court erred in its final mandate to the

jury for first-degree murder under the theory of felony murder because the instruction

failed to repeat the elements for the underlying felonies of attempted first-degree rape

and attempted robbery with a dangerous weapon. Defendant failed to object to the

trial court’s alleged omission but argues that the argument is still preserved for

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appeal. To support this contention, defendant cites State v. Ross, 322 N.C. 261 (1988),

and State v. Keel, 333 N.C. 52 (1992), for the proposition that an alleged instructional

error is preserved for appeal if the instruction was “promised” by the trial court but

then never given to the jury.

In Ross, this Court held that, notwithstanding a defendant’s failure to object

at trial, a challenge to a jury instruction is preserved “where the requested instruction

is subsequently promised but not given.” 322 N.C. at 265. Likewise, in Keel, this

Court held that “[t]he State’s request [for a pattern jury instruction], approved by the

defendant and agreed to by the trial court, satisfied the requirements of . . . the North

Carolina Rules of Appellate Procedure and preserved this question for review on

appeal.” 333 N.C. at 56–57.

However, these two cases are inapposite. Here, during the charge conference,

the trial court informed both parties that it planned to give the pattern instruction

for first-degree murder found in North Carolina Pattern Jury Instructions for

Criminal Cases (N.C.P.I.—Crim. 206.14). Both parties were given draft copies of the

proposed jury instructions which contained the language that defendant now argues

was improper. The State’s only proposed changes were clerical, not substantive.

Defendant had access to the specific language that was to be used by the trial court

but concedes that he never proposed new instructions nor objected to them at the

conclusion of the conference. The State also did not object to nor request any specific

instructions. Therefore, both Ross and Keel are inapplicable, as there was no

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requested instruction by either the State or defendant which was promised by the

trial court but then was not given to the jury. As such, we review the trial court’s

final mandate to the jury for plain error. See Lawrence, 365 N.C. at 516.

Because the “[u]se of the pattern instructions is encouraged, but is not

required,” State v. Garcell, 363 N.C. 10, 49 (2009), the failure of a trial court to follow

these instructions does not automatically constitute error, State v. Bunch, 363 N.C.

841, 846 (2010). Rather, an instruction is proper “as long as [it] adequately explains

each essential element of an offense.” Id. When reviewing a charge to the jury, it “is

to be construed as a whole.” State v. McKinnon, 306 N.C. 288, 300 (1982). In

addressing the adequacy of a final mandate, this Court held that if the trial court

“explained the underlying elements of the crimes [charged] just prior to the final

mandate” and “it is sufficiently clear that no reasonable cause exists to believe that

the jury was misled or misinformed,” then a final mandate is sufficient even if it does

not repeat the essential elements. Id.

The trial court instructed the jury on the requisite elements of first-degree

murder under both premeditation and deliberation and felony murder. For the count

of first-degree murder of Holland, the trial court explained that to find defendant

guilty of first-degree murder on the basis of malice, premeditation, and deliberation,

the State must have proved five things beyond a reasonable doubt:

First, that the defendant intentionally and with

malice killed April Holland with a deadly weapon. Malice

means not only hatred, ill will, or spite, as it is ordinarily

understood. To be sure, that is malice. But it also means

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that condition of mind which prompts a person to take the

life of another intentionally or to intentionally inflict a

wound with a deadly weapon and which proximately

results in her death without just cause, excuse, or

justification.

If the State proves beyond a reasonable doubt the

defendant intentionally killed the victim with a deadly

weapon or intentionally inflicted a wound upon the victim

with a deadly weapon that proximately caused her death,

you may infer, first, that the killing was unlawful and,

second, that it was done with malice, but you are not

compelled to do so. You may consider the inference along

with all other facts and circumstances in determining

whether the killing was unlawful and whether it was done

with malice.

I instruct you that a firearm is a deadly weapon.

Second, the State must prove that the defendant’s

act was a proximate cause of the victim’s death. A

proximate cause is a real cause, a cause without which the

victim’s death would not have occurred, and one that a

reasonably careful and prudent person could foresee would

probably produce such injury or some similar injurious

result.

Third, that the defendant intended to kill the victim.

Intent is a mental attitude seldom provable by direct

evidence. It must ordinarily be proved by circumstances

from which it may be inferred. An intent to kill may be

inferred from the nature of the assault, the manner in

which it was made, the conduct of the parties, and other

relevant circumstances.

Fourth, that the defendant acted after

premeditation, that is, that the defendant formed the

intent to kill the victim over some period of time, however

short, before the defendant acted.

And, fifth, that the defendant acted with

deliberation, which means the defendant acted while the

defendant was in a cool state of mind. This does not mean

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that there had to be a total absence of passion or emotion.

If the intent to kill was formed with a fixed purpose, not

under the influence of some suddenly-aroused, violent

passion, it is immaterial that the defendant was in a state

of passion or excited when the intent was carried into

effect.

The trial court also instructed the jury that in order to find defendant guilty of first-

degree murder of Holland on the basis of felony murder, the State must have proved

three things beyond a reasonable doubt:

First, that the defendant committed the offense of

attempted robbery with a firearm and/or attempted first-

degree rape of April Holland. To establish this first

element, the State must prove two things beyond a

reasonable doubt:

A, that the defendant intended to commit the crime

of robbery with a firearm of April Holland. Robbery with a

firearm occurs when one has in his possession a firearm

and takes and carries away property from the person or

presence of a person without her voluntary consent by

endangering or threatening her life with the use or

threatened use of a firearm, the perpetrator knowing that

he was not entitled to take the property and intending to

deprive the victim of its use permanently.

And, B, that at the time the defendant had this

intent the defendant performed an act which was

calculated and designed to bring about robbery with a

firearm but which fell short of the completed offense and

which in the ordinary and likely course of things the

defendant would have completed that crime had the

defendant not been stopped or prevented from completing

the defendant’s apparent course of action. Mere

preparation or mere planning is not enough to constitute

such an attempt, but the act need not be the last act

required to complete the crime.

Alternatively, the State may prove this first element

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by establishing beyond a reasonable doubt the following:

That the defendant intended to commit the crime of

first-degree rape of April Holland. First-degree rape occurs

when one engages in vaginal intercourse with the victim by

force and against her will while the perpetrator is

displaying or employing a deadly or dangerous weapon.

And, B, that at the time the defendant had this

intent, the defendant performed an act which was

calculated and designed to bring about first-degree rape

but which fell short of the completed offense and which, in

the ordinary and likely course of things, the defendant

would have completed that crime had the defendant not

been stopped or prevented from completing the defendant’s

apparent course of action. Mere preparation and mere

planning is not enough to constitute such an attempt, but

the act need not be the last act required to complete the

crime.

The second element the State must prove beyond a

reasonable doubt to establish felony murder is that, while

committing the offense of attempted robbery with a firearm

or the offense of attempted first-degree rape, the defendant

killed April Holland.

And, third, that the defendant’s act was a proximate

cause of April Holland’s death. A proximate cause is a real

cause, a cause without which the victim’s death would not

have occurred.

The trial court then gave nearly identical instructions to the jury regarding the

requisite elements for the count of first-degree murder of Garvey on the basis of felony

murder, with the exception of changing the language to include “defendant or a

person with whom the defendant was acting in concert” and further instructing the

jury on the theory of acting in concert.

Upon recitation of the required elements for each basis of first-degree murder,

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the trial court then gave the final mandates for both counts of first-degree murder.

Defendant only contests the trial court’s final mandate as to felony murder, which

was as follows:

Whether or not you find the defendant guilty of first-

degree murder on the basis of malice, premeditation, and

deliberation, you will also consider whether the defendant

is guilty of first-degree murder under the first-degree

felony murder rule. If you find from the evidence beyond a

reasonable doubt that on or about the alleged date the

defendant committed the offense of attempted robbery with

a firearm as that offense is defined above or attempted first-

degree rape as that offense is defined above and that, while

committing attempted robbery with a firearm or attempted

first-degree rape, the defendant killed [the victim] and that

the defendant’s act was a proximate cause of [the victim’s]

death, it would be your duty to return a verdict of guilty of

first-degree murder under the felony murder rule.

(Emphasis added.) Similarly, the trial court’s final mandate for the first-degree

murder of Garvey under the theory of felony murder was as follows:

Whether or not you find the defendant guilty of first-

degree murder on the basis of malice, premeditation, and

deliberation, you will also consider whether the defendant

is guilty of first-degree murder under the first-degree

felony murder rule. If you find from the evidence beyond a

reasonable doubt that on or about the alleged date the

defendant, acting either by himself or acting together with

other persons, committed attempted robbery with a

firearm or attempted first-degree rape and that while

committing either or both of these offenses the defendant

or a person with whom the defendant was acting in concert

killed the victim and that the defendant’s act or the act of

the person with whom Defendant was acting in concert was

the proximate because of Dwayne Garvey’s death, it would

be your duty to return a verdict of guilty of first-degree

murder under the felony murder rule. If you do not so find

or have a reasonable doubt as to one or more of these

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things, you will not return a verdict of guilty of first-degree

murder under the felony murder rule.

Defendant contends that “the lack of definition of attempted robbery and

attempted rape in the final mandate probably impacted the jury’s decision to find

[defendant] guilty of first-degree murder.” However, “constru[ing] [it] as a whole,”

McKinnon, 306 N.C. at 300, our review of the transcript shows that the trial court

thoroughly and correctly instructed the jury as to the elements of the underlying

felonies. Therefore, “it is sufficiently clear that no reasonable cause exists to believe

that the jury was misled or misinformed,” see id., and the final mandate was not

improper.

L. Cumulative Error in Denying Defendant a Fair Trial and Sentencing

Hearing

Defendant argues that the cumulative prejudicial impact of “the erroneous

admission of extensive character evidence, irrelevant victim impact evidence, and

repetitive, graphic photo evidence; unsupported and incomplete instructions; and

improper closing argument” entitle him to a new trial or sentencing hearing.

“Cumulative errors lead to reversal when taken as a whole the errors by the

trial court deprived the defendant of his due process right to a fair trial free from

prejudicial error.” State v. Wilkerson, 363 N.C. 382, 426 (2009) (cleaned up); see also

State v. Johnson, 334 S.C. 78, 93 (1999) (“[Defendant] must demonstrate more than

error in order to qualify for reversal on [cumulative error] ground[s]. Instead, the

errors must adversely affect his right to a fair trial.). However, when “none of the

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issues present error, [appellate courts will] decline to consider defendant’s cumulative

error argument.” State v. Betts, 377 N.C. 519, 527 (2021). See also State v. Thompson,

359 N.C. 77, 106 (2004) (holding that because there was no error, defendant's

cumulative error argument should not be considered); Maldjian v. Bloomquist, 275

N.C. App. 103, 125 (2020) (concluding that where an appellate court can “discern no

error . . . , [a] trial court’s rulings cannot cumulatively be deemed prejudicial error.”);

see also Pham v. State, 177 So. 3d 955, 962 (Fla. 2015) (“[W]here the alleged errors

urged for consideration in a cumulative error analysis are individually either

procedurally barred or without merit, the claim of cumulative error also necessarily

fails.” (cleaned up)). Indeed, cumulative error requires there be multiple significant

errors before an appellate court can conclude that a defendant has met the high bar

of demonstrating that he has been wholly “deprived . . . of his due process right to a

fair trial free from prejudicial error.” Wilkerson, 363 N.C. at 426 (cleaned up).

Here, however, there can be no cumulative error because the trial court did not

err. See Betts, 377 N.C. at 527 (“Since we hold that none of the issues present error,

we decline to consider defendant’s cumulative error argument.”); see also State v.

Spangler, 314 N.C. 374, 388 (1985); Thompson, 359 N.C. at 106.8

M. Excusing Jurors for Cause Based on Their Views on the Death Penalty

Defendant next asserts that the trial court abused its discretion when it

8 The only arguable error committed by the trial court concerns the Enmund-Tison

instruction. As we have discussed above, there can be no cumulative error.

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excused prospective jurors McIlvane, Daniels, and Youngquist-Thurow for cause

based on their death penalty views. Defendant argues that the three prospective

jurors’ hesitation in personally imposing a death sentence “did not show [that] they

were substantially impaired.”

“Challenges for cause in jury selection are matters in the discretion of the court

and are not reviewable on appeal except for abuse of discretion.” State v. Kennedy,

320 N.C. 20, 28 (1987). Reviewing courts “must defer to the trial court’s judgment

concerning whether the prospective juror would be able to follow the law impartially,”

State v. Brogden, 334 N.C. 39, 43 (1993), because it is the trial court “who has the

opportunity to see and hear the juror on voir dire and to make findings based on the

juror’s credibility and demeanor,” Kennedy, 320 N.C. at 26. Thus, the trial court’s

determination is only an abuse of discretion if it was “ ‘manifestly unsupported by

reason’ and is ‘so arbitrary that it could not have been the result of a reasoned

decision.’ ” State v. Cummings, 361 N.C. 438, 447 (2007) (quoting State v. Lasiter,

361 N.C. 299, 301–02 (2007)).

Criminal defendants are guaranteed the right to trial by an impartial jury

under the Sixth and Fourteenth Amendments to the United States Constitution and

Article I, Section 24 of our State Constitution. See Richardson, 385 N.C. at 205 (“Both

the United States Constitution and the North Carolina Constitution guarantee

capital defendants have a right under the United States Constitution to trial by an

impartial jury.”); see also State v. Crump, 376 N.C. 375, 381 (2020) (citing N.C. Const.

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art. I, § 24). The State also has a right to an impartial jury. State v. Chandler, 324

N.C. 172, 185–86 (1989); see also State v. Garcia, 358 N.C. 382, 407 (2004) (“The basic

concept in jury selection is that each party to a trial has the right to present his case

to an unbiased and impartial jury.” (quoting State v. Carey, 285 N.C. 497, 506

(1974))). A crucial portion of crafting an impartial jury occurs during voir dire, where

the parties “typically may inquire into prospective jurors’ morals, attitudes, and

beliefs.” Crump, 376 N.C. at 381. “The primary goal of juror voir dire is to ensure

that only those persons are selected to serve on the jury who could render a fair and

impartial verdict.” Kennedy, 320 N.C. at 26.

In a capital case, a prospective juror may not be excused because he or she

merely “voice[s] general objections to the death penalty.” Witherspoon v. Illinois, 391

U.S. 510, 522 (1968). But the State has a “legitimate interest in excluding those

jurors whose opposition to capital punishment would not allow them to view the

proceedings impartially, and who therefore might frustrate administration of a

State’s death penalty scheme.” Wainwright v. Witt, 469 U.S. 412, 416 (1985). Thus,

the proper standard for determining whether a juror may be excused for his view on

the death penalty is “whether the juror’s views would ‘prevent or substantially impair

the performance of his duties as a juror in accordance with his instructions and his

oath.’ ” Id. at 424. This standard does not require that a juror’s bias be “proved with

‘unmistakable clarity.’ ” Id.

This Court has declined to find an abuse of discretion where jurors’ voir dire

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“responses are inconsistent or when jurors’ answers regarding their ability to follow

the law are equivocal.” Garcia, 358 N.C. at 403; see also State v. Berry, 356 N.C. 490,

500 (2002) (holding that the trial court did not abuse its discretion by excusing a

prospective juror for cause when his responses were “not consistent during voir dire,

in that he sometimes stated that he could follow the law, while other times he

qualified his answers by adding that he would require more than circumstantial

evidence”); State v. Jones, 355 N.C. 117, 122 (2002) (concluding that the trial court

did not abuse its discretion by excusing a prospective juror for cause when the

“equivocating nature of her responses . . . led the trial judge to conclude that [she]

would be unable to faithfully and impartially apply the law” (cleaned up)); Smith, 352

N.C. at 545 (holding that whether a prospective juror’s bias makes him excusable for

cause is “the court’s decision, in the exercise of its sound discretion and judgment”).

Further, “where the record shows the challenge is supported by the prospective juror’s

answers to the prosecutor’s and court’s questions, absent a showing that further

questioning would have elicited different answers, the court does not err by refusing

to permit the defendant to propound questions about the same matter.” State v.

Gibbs, 335 N.C. 1, 35 (1993) (cleaned up).

During voir dire, the trial court questioned prospective juror McIlvaine about

his personal views on the idea of sentencing defendant to death. McIlvaine

immediately responded that he “would be nervous about making that decision.” The

State further questioned McIlvaine, asking if he would be able to sentence defendant

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to death if the facts and circumstances called for it:

[The State]: . . . The main thing that we need to be sure of

or convinced of is would you be able to consider this and

would you be able to do that if the facts and circumstances

called for it.

Prospective Juror McIlvaine: That’s a hard question to

answer. I suppose so, but, I mean, I would have to be very

convinced.

....

[The State]: Okay. Do you believe that you would be more

comfortable — you said nervous before about the death

penalty. Would you be more comfortable considering a life

sentence for this particular defendant?

Prospective Juror McIlvaine: I would, yeah.

[The State]: So then that brings us to the next step though.

After going through this process and after considering all

the evidence and the circumstances that were involved, if

you were convinced beyond a reasonable doubt that the

death penalty was appropriate in this particular case, after

going through the evidence and the laws [the judge] gives

you, do you believe that you would be able to personally

vote for that kind of sentence?

Prospective Juror McIlvaine: I just — I just don’t know. I

really don’t think so.

....

Prospective Juror McIlvaine: I just think I would have a

hard time with it.

....

[The State]: But what if you thought a death sentence was

appropriate? Would you be able to stand up in open court

and tell this judge that you thought that that was an

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appropriate sentence?

Prospective Juror McIlvaine: Yeah, I would have a hard

time with that.

[The State]: Do you believe you would be able to do that?

Prospective Juror McIlvaine: I’m not sure that I would.

Based on these responses, the trial court found that McIlvaine’s views “would

prevent or substantially impair the performance of [his] duties as a juror in

accordance with his instructions and his oath.” The trial court also ruled that there

was a “lack of probability that further questioning w[ould] produce different answers

from this juror” and dismissed him for cause.

Although McIlvaine at one point stated that he “supposed” he could vote for a

sentence of death, his equivocal responses was enough to uphold his dismissal. See

Garcia, 358 N.C. at 403. Further, because many of McIlvaine’s responses

demonstrated that he would not have been able to set aside his personal views, the

trial court did not abuse its discretion by prohibiting defendant from questioning him

further. See Gibbs, 335 N.C. at 35. Thus, we conclude that there was no abuse of

discretion in the trial court’s dismissal of McIlvaine.

We turn next to prospective juror Daniels. During voir dire, the State asked

Daniels about her feelings on capital punishment:

[The State]: Have you had some time in the last couple of

days to think through [capital punishment]?

Prospective Juror Daniels: Yes. I’m a[n] honest Christian

lady, and I’ve spoken to my pastor about it, and my thought

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is I don’t believe in capital punishment.

....

[The State]: And is this something that you feel like, even

if you were asked to go through a process with the jury,

that because of these feelings that you hold you just would

not ever be able to consider the death sentence?

Prospective Juror Daniels: No, ma’am.

....

Prospective Juror Daniels: No, ma’am, I would not be able

to.

[The State]: And that’s fair. That’s fair. Is it fair to say that,

even if you were asked to go through and to consider

aggravating factors versus mitigating factors, there’s

really nothing that is going to change your mind? You are

never going to say I’m okay with a death sentence?

Prospective Juror Daniels: Correct, I will not say it.

The trial court dismissed Daniels for cause, concluding that her “views would

prevent or substantially impair the performance of [her] duties in accordance [with]

her instructions and her oath” and that there was a “lack of probability that further

questioning w[ould] produce different answers.”

We conclude that the trial court properly exercised its discretion in allowing

Daniels to be excused for cause. Daniels’s unequivocal answers in opposition to the

death penalty demonstrated that her personal views “would not allow [her] to view

the proceedings impartially.” See Wainwright, 469 U.S. at 416. And given the

absolute nature of her answers, the trial court did not abuse its discretion by

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prohibiting defendant from questioning her further. See Gibbs, 335 N.C. at 35.

Finally, during the voir dire of prospective juror Youngquist-Thurow, the trial

court and the State questioned him about his views on the death penalty:

The Court: So this is a capital case. . . . And so the question

that I would ask of you before I pass you on to the lawyers

is is there anything that’s on your mind that you have said

to yourself this is something that I just need the judge and

the lawyers to know about me before we go any further? . . .

Prospective Juror Youngquist-Thurow: Well, the death

penalty issue is one that I would not want to consider. I

have been a pacifist pretty much all of my life, registered

as a conscientious objector draft-wise even though it didn’t

really affect me, but did that anyway. And I’ve always been

more of a right-to-life choice than —

....

[The State]: . . . I think the death penalty issue and capital

punishment is one of those things that . . . people have very

strong opinions one way or another, and that’s fine. But

what is required is to have people who will be willing to sit

and weigh each option fairly.

And there’s people that . . . hold beliefs, whether they

be personal, moral, religious, that . . . this is not the issue

for them where they can do that.

....

[The State]: . . . And I guess my question to you is is this

that issue for you[?]

Prospective Juror Youngquist-Thurow: I think it could be.

When he explained the case, I remembered just that

sinking feeling that, “Oh, no. I may have to make that

decision,” and just feeling uncomfortable with that right

away. For me, it’s a religious thing. I believe that’s God’s

right, not my right to make that decision.

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[The State]: Sure. And that’s completely fair. Do you think

that because of that kind of deep seated religious belief that

you just would not be able to make that decision?

Prospective Juror Youngquist-Thurow: I think it would be

very, very difficult for me to do that consciously.

....

[The State]: Do you think that even though you have these

beliefs that you could sit and go through the process and, if

you determined that all of . . . the steps were met, that you

could come in and say that the appropriate sentence was

death?

Prospective Juror Youngquist-Thurow: I would have a hard

time with that, I believe.

....

[The State]: Sure. And is that that you feel like, because of

that, you would just automatically lean towards a life

without parole?

Prospective Juror Youngquist-Thurow: Correct.

[The State]: Instead of weighing the circumstances, you

would automatically go to that?

Prospective Juror Youngquist-Thurow: Yes.

The trial court allowed Youngquist-Thurow to be excused for cause, finding

that because he had “stated consistently that the imposition of the death penalty is

very difficult for him . . . [and] instead of weighing the circumstances, [he] would

automatically go towards a punishment of life without the possibility of parole,” these

views would “substantially impair the performance” of his duties. The trial court did

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not allow for further questioning of Youngquist-Thurow due to the “lack of probability

that further questioning w[ould] produce different answers.”

We conclude that there was no abuse of discretion here because Youngquist-

Thurow repeatedly emphasized that he was not comfortable with imposing the death

penalty and then stated that even if all of the circumstances were met, he still would

automatically impose a sentence of life without parole rather than the death penalty.

These answers demonstrated that Youngquist-Thurow’s “opposition to capital

punishment would not allow [him] to view the proceedings impartially.” See

Wainwright, 469 U.S. at 416. Thus, the trial court properly exercised its discretion

in excusing this juror for cause.

N. Peremptory Instructions on Three Mitigating Circumstances

Defendant next contends that the trial court erred by failing to give

peremptory instructions on three out of the forty mitigating circumstances presented

during the sentencing phase of trial. Defendant argues that uncontroverted evidence

supported the following non-statutory mitigating circumstances, such that the

peremptory instructions should have been given:

Mitigating Circumstance # 11: “Seaga Gillard’s childhood

asthma prevented him from participating in the same

physical activities and sports as his younger brother.”

Mitigating Circumstance # 21: “Seaga Gillard’s home

environment made it difficult for him to succeed in school.”

Mitigating Circumstance # 36: “Seaga Gillard suffers from

Other Specified Trauma and Stressor Related Disorder.”

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A peremptory instruction directs the jury that if it finds the facts presented to

be true, then it must find that a particular mitigating circumstance has been

established. N.C.P.I.—Crim. 150.12. “Where all of the evidence in a capital

prosecution, if believed, tends to show that a particular mitigating circumstance does

exist, the defendant is entitled to a peremptory instruction on that circumstance.”

State v. Gay, 334 N.C. 467, 492 (1993) (cleaned up) (emphasis added). Nonetheless,

where “the evidence is controverted or the evidence supporting the circumstance is

not manifestly credible, the trial court should not give peremptory instructions.”

State v. McLaughlin, 341 N.C. 426, 449 (1995) (emphasis added) (citing State v.

Green, 336 N.C. 142, 172–74 (1994)). Thus, we review for whether each mitigating

circumstance was supported by uncontroverted evidence. Id.; Golphin, 352 N.C. at

475.

During the sentencing phase, the State originally stipulated to the three

mitigating circumstances at issue, but it later withdrew the stipulations. We address

each in turn to determine whether uncontroverted evidence supported each

circumstance.

For non-statutory Mitigating Circumstance No. 11, the State withdrew its

stipulation concerning defendant’s asthma because there was testimony presented

that he played soccer as a child. The State said it would agree to the peremptory

instruction if the language of the circumstance was changed to “Seaga Gillard’s

childhood asthma sometimes prevented him from participating in the same physical

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