Petition for Writ of Certiorari — Seaga Edward Gillard, Petitioner v. North Carolina
Supreme Court briefMay 29, 2025
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**CAPITAL CASE**
No. _________
IN THE
Supreme Court of the United States
_____________________________
SEAGA EDWARD GILLARD,
Petitioner,
v.
STATE OF NORTH CAROLINA,
Respondent.
______________
Appendix to Petition for a Writ of Certiorari
______________
GLENN GERDING
APPELLATE DEFENDER
AMANDA S. ZIMMER
Counsel of Record
AARON T. JOHNSON
ASSISTANT APPELLATE DEFENDERS
OFFICE OF THE APPELLATE DEFENDER
123 West Main Street, Suite 500
Durham, North Carolina 27701
919.354.7210
amanda.s.zimmer@nccourts.org
Counsel for Petitioner
TABLE OF CONTENTS
Appendix A
--
Opinion of the Supreme Court of North Carolina entered
December 13, 2024, finding no error in Mr. Gillard’s direct
appeal (State v. Gillard, 909 S.E.2d 226 (N.C. 2024)).................. 1
Appendix B
--
Judgment of the Supreme Court of North Carolina entered
on January 2, 2025, denying Mr. Gillard’s direct appeal and
issuing the mandate .................................................................... 94
Appendix C
--
Letter from the Office of the Clerk of the Supreme Court of
the United States dated March 18, 2025, reflecting entry of
extension of time to file the Petition for Writ of Certiorari
until June 1, 2025 ........................................................................ 95
1
State v. Gillard
Supreme Court of North Carolina
October 31, 2023, Heard in the Supreme Court; December 13, 2024, Filed
No. 316A19
Reporter
386 N.C. 797 *; 909 S.E.2d 226 **; 2024 N.C. LEXIS 978 ***; 2024 WL 5102051
STATE OF NORTH CAROLINA v. SEAGA EDWARD GILLARD
Disposition: AFFIRMED.
Counsel: [***1] 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.
Judges: BERGER, Justice. Justice EARLS concurring in part and dissenting in part.
Opinion by: BERGER
Opinion
[*803] [**241] 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.
[*804] 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.
I. [***2] 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
Appendix A
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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 [***3] 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 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 [*805] 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 [**242] 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 [***4] 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 firstdegree 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, 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.
1 Holland and Garvey both received the text messages using Google Voice.
3
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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 [***5] 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 [*806] 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 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 [***6] 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.
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 [***7] debit [**243] 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.
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.
4
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[*807] 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 [***8] 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 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 [*808] 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 [***9] 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.
5
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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 [***10] to the hotel lobby where she was aided by
the staff, and later, the police.
[*809] 15. [Rachel B.] reported that the assailants were black males and that one, the more
violent of the two, had a foreign accent and [**244] 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.
24. The criminal activity against [Rachel [***11] 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.
[*810] 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 [***12] excluded under Rule 403.
6
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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 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 [***13] 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.
[*811] [**245] 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, 389 S.E.2d 48 (1990) (cleaned up); see also State v.
Carpenter, 361 N.C. 382, 386, 646 S.E.2d 105 (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).
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, 567 S.E.2d 120 (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, 552
S.E.2d 596 (2001); State v. Lynch, 334 N.C. 402, 412, 432 S.E.2d 349 (1993)). [***14]
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, 406 S.E.2d 876 (1991). These facts need not "rise to the level of unique and bizarre." State v.
Beckelheimer, 366 N.C. 127, 131, 726 S.E.2d 156 (2012) (cleaned up). Rather, the ultimate question is
one of "logical relevancy." State v. McClain, 240 N.C. 171, 177, 81 S.E.2d 364 (1954) (explaining that
there must be a logical connection between the prior bad act and the crime charged); see also State v.
7
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Fowler, 230 N.C. 470, 473, 53 S.E.2d 853 (1949) ("The touchstone is logical relevancy."); State v. Felton,
283 N.C. 368, 372, 196 S.E.2d 239 (1973); State v. Hunt, 305 N.C. 238, 246, 287 S.E.2d 818 (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 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 [*812] evidence.3 Specifically, defendant contends [***15] 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 provocation for the crimes committed
against Rachel B., but [**246] 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 [***16]
the perpetrator." State v. Watson, 338 N.C. 168, 176, 449 S.E.2d 694 (1994), cert. denied, 514 U.S. 1071,
115 S. Ct. 1708, 131 L. Ed. 2d 569 (1995), overruled in part on other grounds by State v. Richardson, 341 N.C.
585, 461 S.E.2d 724 (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.
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.' "
8
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[*813] 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 [***17] person when there is no evidence that the second victim posed any threat.
Holland was naked and defenseless at the time of 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, 837 S.E.2d 169 ("[F]indings of fact normally involve logical reasoning through
the evidentiary facts." (cleaned up)), aff'd 378 N.C. 236, 861 S.E.2d 474 (2021); Williams v. Marchelle
Isyk Allen, P.A., 383 N.C. 664, 672-73, 881 S.E.2d 117 (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, 14 S.E.2d 515 (1941) ("If it is a mixed question of fact and
law it is likewise conclusive, provided there is sufficient evidence to [***18] sustain the element of
the fact involved.").
Defendant is correct that both Bessie A. and Holland were located at lowbudget 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 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, 470 S.E.2d 38 (1996) ("These facts are so strikingly similar as to
permit [the victim's friend, a fellow prostitute, to [*814] testify] for the purpose of proving
defendant's identity as well as showing a common [***19] opportunity, plan, [**247] and modus
operandi to defendant's attacks.") See also State v. Pruitt, 94 N.C. App. 261, 267, 380 S.E.2d 383 (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, 355 S.E.2d 182 (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
9
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386 N.C. 797, *814; 909 S.E.2d 226, **247; 2024 N.C. LEXIS 978, ***19
"ends with a robbery and sexual assault, and sometimes violence, if [d]efendant's plan meets a hurdle
as it apparently did with 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. [***20] 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 sufficient similarity between
the Bessie A., Rachel B., and Holland incidents "to show a common scheme or plan." Defendant
concedes that [***21] [*815] 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 [***22] similarities and not the differences between the two incidents." State v. Pickens, 385 N.C.
351, 359, 893 S.E.2d 194 (2023). "Our Rule 404(b) standard does not require identical or even nearidentical circumstances between the charged offense and the prior bad act for evidence of the 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.
10
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386 N.C. 797, *815; 909 S.E.2d 226, **247; 2024 N.C. LEXIS 978, ***22
[**248] 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. [***23] State v.
Cummings, 326 N.C. 298, 310, 389 S.E.2d 66 (1990) (emphasis added) (quoting State v. Morgan, 315
N.C. 626, 637, 340 S.E.2d 84 (1986)).
[*816] 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 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, 340 S.E.2d 350 (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, 891 S.E.2d 132 (2023) (quoting State v.
Hennis, 323 N.C. 279, 285, 372 S.E.2d 523 (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 [***24] 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 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
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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. [***25] [*817] 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, [**249] 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,
623 S.E.2d 11 (2005) (alteration in original) (quoting State v. McPhail, 329 N.C. 636, 643, 406 S.E.2d
591 (1991)); see also State v. Wilkinson, 344 N.C. 198, 214, 474 S.E.2d 375 (1996) ("Since defendant
asked for the exact instruction that he now contends is prejudicial, any error was invited error."
(cleaned up)); State v. Miller, 289 N.C. App. 429, 433, 889 S.E.2d 231 (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 [***26] 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,
723 S.E.2d 326 (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, defendant and "B" picked
her up, took her back to defendant's home, and told her that she was required to make an additional
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$5,000.00 [*818] for them. Kara L. objected to this request and asked to be taken home. In
response, defendant took out his [***27] 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 [***28] 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 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:
[**250] [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 [*819] [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 [***29] identified defendant and "B" as the two perpetrators in the still photographs
taken from the hotel surveillance footage on the night of the murders.
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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 [*820] 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 [***30] 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, 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 [***31] 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,
300 S.E.2d 375 (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
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the error is an exceptional case that warrants plain error review, typically by showing that the
error seriously affects [**251] the fairness, integrity or public reputation of judicial proceedings.
State v. Reber, 386 N.C. 153, 158, 900 S.E.2d 781 (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 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 [***32] because the purported
error affects "the fairness, integrity or public reputation of judicial proceedings." Id. at 158 (quoting
Lawrence, 365 N.C. at 518).
[*821] 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, 536 S.E.2d 1 (2000), such as Rule 403
determinations. See State v. Murillo, 349 N.C. 573, 602, 509 S.E.2d 752 (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, 712 S.E.2d 387 (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, 669
S.E.2d 8 (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, 656 S.E.2d
697 (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, 707 S.E.2d 210 (2011).
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 [***33] 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, 187 S.E.2d 22
(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, 440 S.E.2d 98 (1994) (emphasis added); see also State v. Smith,
357 N.C. 604, 614, 588 S.E.2d 453 (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.").
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Here, defendant's argument that the trial court committed plain error under Rule 401 is without
merit. First, the gun used by defendant [*822] to shoot Holland was never recovered. Therefore,
Kara L.'s testimony about defendant's possession of, preference for, [***34] and prior assault with a
firearm was relevant as it made the fact that 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 [**252] 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 [***35] 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 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, 770 S.E.2d 77 (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 [*823] 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 [***36] 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.
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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 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 [***37] 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.
[*824] [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.
[**253] 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 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 [***38] 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, 572 S.E.2d
108 (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
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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 [***39] in
prostitution on 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 [*825] 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 [***40] 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 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 [**254] 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. [***41]
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, 380 S.E.2d 359 (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
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way or move to have it stricken at [*826] 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, 255 S.E.2d 631, disc. rev. denied, 298 N.C. 205 (1979) (holding that evidence of a
witness's orphan status, epileptic 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 [***42] 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 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 [***43] 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,
616 S.E.2d 515 (2005) [*827] (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, 532 S.E.2d 773 (2000); State v.
Atkins, 349 N.C. 62, 94, 505 S.E.2d 97 (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, 533 S.E.2d 168 (2000) (quoting N.C.G.S. § 15A-2000(a)(3) (1999)).
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Because of this considerable leeway, "trial courts are not required to perform the Rule 403 balancing
test during a sentencing proceeding." [**255] Id. (quoting State v. Flippen, 349 N.C. 264, 273, 506
S.E.2d 702 (1998), cert. denied, 526 U.S. 1135, 119 S. Ct. 1813, 143 L. Ed. 2d 1015 (1999)). Further,
during the sentencing phase, "the jury is properly permitted to consider all the evidence presented
during the guilt-innocence phase." State v. Moseley, 338 N.C. 1, 41, 449 S.E.2d 412 (1994).4
a. Keyona T. & Keyana M.
The State called Keyona T. and [***44] 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.
[*828] 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 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 [***45] 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.
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.
20
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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 right to a fair capital sentencing hearing
was undermined by the "the unfairly inflammatory evidence [***46] 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 [**256] created by [admission of this
evidence]." State v. Moody, 345 N.C. 563, 572, 481 S.E.2d 629 (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.
[*829] 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," [***47] 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 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, 531 S.E.2d 799 (2000) (citing State v. Goode, 350 N.C.
247, 258, 512 S.E.2d 414 (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, 365 S.E.2d 615 (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,
21
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454, 418 S.E.2d 178 (1992). And while there is "no definitive test for the admissibility [***48] 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 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 [*830] State v. Temple, 302 N.C. 1, 14, 273 S.E.2d 273 (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 [***49] to the State's case. See State v. Kandies, 342 N.C. 419, 443, 467 S.E.2d 67 (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 [**257] (holding that eightyeight 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, 488 S.E.2d 576 (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. 1, 16, 577 S.E.2d 594 (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 [***50]
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 firstresponders 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.
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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, [*831] whereas 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, [***51] 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 [***52] 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
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 [**258] 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, 839 S.E.2d 782 (2020) (quoting State v. Winkler, 368 N.C. 572, 780 S.E.2d
824 (2015)). [*832] 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 [***53] the court' s duty to submit the case
to the jury." State v. Horner, 248 N.C. 342, 344-45, 103 S.E.2d 694 (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,
296 S.E.2d 649 (1982).
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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 N.C. 373, 378-79, 526 S.E.2d 451 (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 [***54] 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, 799 S.E.2d 816 (2017)
(cleaned up).
Because "[i]ntent is an attitude or emotion of the mind and is seldom, if ever, 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, 133 S.E.2d 649
(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, 565 S.E.2d 609 (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 [*833] 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 [***55] 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, 821 S.E.2d 424 (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, 477 S.E.2d 915 (1996)). Instead, it is sufficient [**259]
once a defendant has "begun to execute the criminal design that he helped concoct." Id. at 762
(cleaned up).
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We turn first to the attempted crime of rape. To prove intent, the State must 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, 530 S.E.2d 73 (2000) (citing State
v. Robbins, 99 N.C. App. 75, 80, 392 S.E.2d 449, aff'd, 327 N.C. 628, 398 S.E.2d 331 (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, [***56] 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.
[*834] 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 [***57] 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, 352 S.E.2d 420 (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, 455 S.E.2d 627 (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 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 [***58] occurred, defendant
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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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 [**260] 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 [*835] 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 [***59] 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. 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, 514 S.E.2d 486 (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, 485 S.E.2d 284 (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, 539 S.E.2d 922 (2000) [***60] (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, 509 S.E.2d 178
(1998).
Because premeditation and deliberation are "mental processes that are not readily susceptible to
proof by direct evidence," they are often proven through circumstantial evidence. State v. Childress,
367 N.C. 693, 695, 766 S.E.2d 328 (2014) (quoting State v. Sierra, 335 N.C. 753, 758, 440 S.E.2d 791
(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
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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 [*836] Childress, 367 N.C. at
695-96; State v. Olson, 330 N.C. 557, 565, 411 S.E.2d 592 (1992); State v. Taylor, 362 N.C. 514, 531, 669
S.E.2d 239 (2008). Further, "lack of provocation by the victim supports an inference of
premeditation and deliberation." Miller, 339 N.C. 663, 682, 455 S.E.2d 137 (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 [***61] 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 [**261] 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 N.C. at 565-66 (concluding that evidence that "the wounds were fatal in nature"
supported a finding of premeditation and deliberation); State v. De Gregory, 285 N.C. 122, 130, 203
S.E.2d 794 (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 [***62] 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, 595 S.E.2d 381 (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, 852 S.E.2d 36 (2020) (cleaned up).
[*837] In State v. Blankenship, this Court, straying from over 160 years of established 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, 447 S.E.2d 727 (1994).
Nonetheless, just three years later in State v. Barnes, this Court explicitly overruled Blankenship and
returned to the "well established principle" that where
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two persons join in a purpose to commit a crime, each of them . . . is not only guilty as a
principal [***63] 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, 481 S.E.2d 44 (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.
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 [***64] 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, [**262] Garvey was unarmed, and nine
separate rounds were fired by Hill, with [*838] 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
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Defendant next argues that the State's evidence was insufficient to submit the aggravating
circumstance [***65] 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, 410
S.E.2d 875 (1991), and State v. Meadows, 371 N.C. 742, 821 S.E.2d 402 (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 [***66] 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 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 [*839] 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, 102 S. Ct. 3368, 73 L. Ed. 2d 1140
(1982), and Tison v. Arizona, 481 U.S. 137, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (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 [***67] 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 [**263] 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
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himself 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 [*840] 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 [***68] 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.
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 selfdefense 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 [***69] 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 [*841] 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
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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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 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, 214 L. Ed. 2d 183 (2022) (holding [***70] that the Eighth Amendment
[**264] 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, 555 S.E.2d 534
(2001); State v. Gaines, 345 N.C. 647, 682, 483 S.E.2d 396 (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, 463 S.E.2d 218 (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 [***71] 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
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 [*842] "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 [***72] of death represents a highly
culpable mental state, a mental state that may be taken into account in making a capital sentencing
judgment . . . ." Id. at 157-58. Defendant's actions underscore the notion that "the more purposeful is
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, 616 S.E.2d 515 (2005) (holding that an instruction to the jury is
sufficient if the substance of the instruction is provided).
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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 [**265] 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, 530 S.E.2d 807 (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, 453 S.E.2d 824 (1995).
However, "[a]ggravating [***73] circumstances are not considered redundant absent a complete overlap
in the evidence supporting them." State v. Moseley, 338 N.C. 1, 54, 449 S.E.2d 412 (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 [*843] 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 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 [***74] 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
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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 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 [***75] 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 [*844] 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 contends that Keyona [**266] T.'s incourt identification violated his due process rights.
Keyona T. testified during the sentencing phase that while working as a prostitute out of a lowbudget motel in April of 2016, [***76] 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. [***77] 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. Keyona T. stated that she
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recognized defendant in the Google photos based on his "familiar face" from her previous encounter
with him.
[*845] 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 [***78] 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 incourt 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 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 [***79] 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.
[*846] 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 [**267] 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, 833 S.E.2d 779 (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, 548
S.E.2d 684 (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 [***80]
analysis if it first determines that the witness's pretrial identification of the defendant did not arise
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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, 361 S.E.2d 551
(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 [***81] 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 [*847] omission but argues that the argument is
still preserved for appeal. To support this contention, defendant cites State v. Ross, 322 N.C. 261, 367
S.E.2d 889 (1988), and State v. Keel, 333 N.C. 52, 423 S.E.2d 458 (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." [***82] 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 requested [**268] instruction by either the State or defendant which was promised
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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, 678 S.E.2d 618 (2009), the failure of a trial court to follow these instructions does not
automatically constitute error, State v. Bunch, 363 N.C. 841, 846, 689 S.E.2d 866 (2010). Rather, an
instruction is proper "as long as [it] adequately explains [***83] 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, 293 S.E.2d 118 (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.
[*848] 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 that condition of mind which prompts a person to take the life of
another intentionally [***84] 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 [***85] 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.
[*849] 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 that there had to be a total absence of
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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:
[**269] 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 [***86] 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 [*850]
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 by establishing beyond a reasonable [***87]
doubt the following:
That the defendant intended to commit the crime of first-degree rape of April Holland. Firstdegree 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 [***88] 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
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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, the trial court then
gave the final mandates for both [*851] 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 firstdegree 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 [***89] 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 firstdegree murder under the felony murder rule.
[**270] (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 firstdegree 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 [***90] 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 things, you will not return a verdict of guilty of first-degree
murder under the felony murder rule.
[*852] 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;
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unsupported and incomplete instructions; [***91] 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, 683 S.E.2d 174 (2009) (cleaned up); see also State v. Johnson, 334 S.C. 78, 93, 512 S.E.2d
795 (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 issues present error, [appellate courts will] decline to consider
defendant's cumulative error argument." State v. Betts, 377 N.C. 519, 527, 858 S.E.2d 601 (2021). See
also State v. Thompson, 359 N.C. 77, 106, 604 S.E.2d 850 (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, 853 S.E.2d 753 (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 [***92] 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 [*853] the issues present error, we decline to consider
defendant's cumulative error argument."); see also State v. Spangler, [**271] 314 N.C. 374, 388, 333
S.E.2d 722 (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 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, 357 S.E.2d 359
(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, 430
S.E.2d 905 (1993), because it is the trial court "who has the opportunity to see [***93] 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
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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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, 648 S.E.2d 788 (2007) (quoting State v. Lasiter, 361
N.C. 299, 301-02, 643 S.E.2d 909 (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, 851 S.E.2d 904 (2020) (citing
N.C. Const. art. I, § 24). The State also has a right to an impartial jury. State v. Chandler, 324 N.C. 172,
185-86, 376 S.E.2d 728 (1989); see also State v. Garcia, 358 N.C. 382, 407, 597 S.E.2d 724 (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, 206 S.E.2d 213 (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 [*854] 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 [***94] 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, 88 S. Ct. 1770, 20 L.
Ed. 2d 776 (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, 105 S. Ct. 844, 83 L. Ed. 2d 841 (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 "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, 573 S.E.2d 132 (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 [**272] voir dire, in that he sometimes stated that he could follow the law,
while other times he qualified his answers by adding that he [***95] would require more than
circumstantial evidence"); State v. Jones, 355 N.C. 117, 122, 558 S.E.2d 97 (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
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defendant to propound questions about the same matter." State v. Gibbs, 335 N.C. 1, 35, 436 S.E.2d
321 (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 to death if the facts and circumstances called for it: [***96]
[*855] [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 [***97] 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 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?
[*856] 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
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him further. See Gibbs, 335 N.C. at 35. Thus, we conclude that there was no abuse of discretion
[**273] in the trial court's [***98] 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 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 [*857] 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 [***99] 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
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 [***100] 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 —
....
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[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.
[*858] 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.
[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? [***101]
[**274] 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.
[*859] 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 not allow for further questioning [***102] 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.
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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 [***103] 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."
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 [*860] a peremptory instruction on that
circumstance." State v. Gay, 334 N.C. 467, 492, 434 S.E.2d 840 (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, 462 S.E.2d 1 (1995) (emphasis added) (citing State v. Green, 336 N.C. 142, 172-74, 443
S.E.2d 14 (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 [**275] the stipulations. We address each in turn to determine [***104]
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
activities and sports as his younger brother," but defendant refused. The trial court then stated that it
would not provide a peremptory instruction for Mitigating Circumstance No. 11.
We disagree with defendant's contention that the evidence to support Mitigating Circumstance No.
11 was uncontroverted. Evidence was presented that defendant suffered from asthma as a child and
was unable to compete in sports at the same level as his brother, Khalid. Defendant's brother earned
a scholarship to play in college. And while evidence was presented that defendant had an asthma
attack while playing soccer, he still played sports notwithstanding his asthma. Moreover, defendant's
asthma may or may not have had an impact on his ability to participate [***105] in similar physical
activities as his younger brother; given that his brother was a college athlete, it is equally as likely that
defendant simply lacked the athletic ability to participate at the same level. Therefore, even if
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defendant's asthma tended to flare up when he played soccer, he was not entirely prevented from
"participating in the same physical activities and sports as his younger brother." As such, the trial
court did not err by failing to provide the peremptory instruction for Mitigating Circumstance No.
11.
For non-statutory Mitigating Circumstance No. 21, the State withdrew its stipulation for the
peremptory instruction because evidence was presented that multiple factors purportedly impacted
his ability to [*861] succeed in school, not just his home life. Even so, the State offered to stipulate
if the language of the circumstances was changed to "Seaga Gillard's home environment was a factor in
making it difficult for him to succeed in school," but defendant rejected this rephrasing. The trial court
found that because the original proposed language of Mitigating Circumstance No. 21 was "stated
fairly absolutely," it would permit the State's withdrawal of its stipulation and [***106] no
peremptory instruction would be provided.
We disagree with defendant that the evidence to support Mitigating Circumstance No. 21 was
uncontroverted. While evidence was presented regarding defendant's difficult home life, including
that he grew up in extreme poverty, lacked consistent access to food, and often went without proper
clothing or books for school, evidence was also presented that defendant began smoking around the
age of ten and that he "spent most of his time with his friends on the street."
Thus, there was contradictory evidence presented concerning his ability to succeed in school. Home
conditions certainly may be a factor in a child's ability to be successful but failure to attend school,
being on the streets, and engaging in behavior that is not age appropriate can also be a contributing
factor. Therefore, because the absolute language used in Mitigating Circumstance No. 21 was not
uncontroverted, the trial court did not err by declining to submit the peremptory instruction.
McLaughlin, 341 N.C. at 449.
For non-statutory Mitigating Circumstance No. 36, the State withdrew its stipulation concerning
defendant's stressor-related disorder because records from the Ohio Department of
Rehabilitation [***107] and Correction indicated that defendant did not suffer from "any kind of
mental health problems or depression." The trial court agreed and ruled that it would not give a
peremptory instruction for Mitigating Circumstance No. 36.
The trial court did not err in its decision to withhold the peremptory instruction as to this mitigating
circumstance. During the sentencing phase, Dr. Amy James, a clinical psychologist, testified that she
was hired by defendant to provide "an evaluation for a mitigation and sentencing." Dr. James testified
that she had diagnosed defendant with "other specified trauma and stressor related [**276]
disorder." However, Dr. James also admitted that she had reviewed prior medical records from the
Ohio Department of Rehabilitation and Correction from March 2012, which indicated that defendant
did not suffer from "any kind of mental health problems." This alone demonstrates that there was
competing evidence of whether defendant suffered from any mental disorder.
[*862] Moreover, this Court has repeatedly held that if evidence is "prepare[d] for testifying at trial,
rather than to treat [a] defendant, it lacks the indicia of reliability based on the self-interest inherent in
obtaining [***108] appropriate medical treatment." State v. Bishop, 343 N.C. 518, 557-58, 472 S.E.2d
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842 (1996); see also Barden, 356 N.C. at 377 ("We have held that the testimony of an expert witness
who has prepared an analysis of a defendant in preparation for trial lacks the indicia of reliability . . .
and, because not manifestly credible, does not support a peremptory instruction as to this particular
mitigating circumstance." (cleaned up)).
Here, even if the evidence concerning defendant's mental health was uncontroverted, Dr. James's
testimony lacked the "indicia of reliability" to support the peremptory instruction because her
diagnosis was developed in anticipation of trial rather than to aid in the treatment of defendant.
Bishop, 343 N.C. at 557-58. Thus, defendant's argument is without merit.
O. Defendant's Motion to Strike the Death Penalty
Defendant next argues that the trial court erred by denying his pretrial motion to strike the death
penalty. Defendant contends that the State's decision to proceed capitally had a "chilling effect" on
the exercise of his Fifth and Sixth Amendment rights under the United States Constitution and
Article 1, Sections 23 and 24 of our State Constitution. Specifically, defendant challenges the District
Attorney's discretion in seeking the death penalty and engaging in plea bargaining, asserting that it has
created "a death penalty system [***109] that is functionally the same as when now repealed
N.C.G.S. § 15-162.1 was in effect."9
Defendant's argument—that the State's prosecutorial discretion to seek a particular sentence or to
engage in plea bargaining is [*863] unconstitutional—is unsupported by this Court's precedent. See
generally State v. Ward, 354 N.C. 231, 260, 555 S.E.2d 251 (2001); State v. Smith, 359 N.C. 199, 225, 607
S.E.2d 607 (2005). Under our current statutory scheme,
[t]he State, in its discretion, may elect to try a defendant capitally or noncapitally for first degree
murder, even if evidence of an aggravating circumstance exists. The State may agree to accept a
sentence of life imprisonment for a defendant at any point in the prosecution of a capital felony,
even if evidence of an aggravating circumstance exists.
N.C.G.S. § 15A-2004(a) (2023).
Thus, there is no "mandate" for the death penalty here which would impermissibly burden a
defendant's constitutional rights. Instead, decisions to seek the death penalty or engage in plea
negotiations are left within the "purview of the exclusive and discretionary [**277] power of a
district attorney," State v. Diaz-Tomas, 382 N.C. 640, 649, 888 S.E.2d 368 (2022), and we decline to
9 "Until 1969 North Carolina's death penalty statutes required that unless the jury in its unlimited and unbridled discretion recommended life
imprisonment the death penalty would be imposed for convictions of first degree murder, rape, first degree burglary and arson." State v. McKoy, 327
N.C. 31, 39-40, 394 S.E.2d 426 (1990). However, under the statutory scheme of former N.C.G.S. § 15-162.1, criminal defendants charged with
crimes eligible for the death penalty were permitted to enter a guilty plea in exchange for a sentence of life imprisonment. State v. Anderson, 281
N.C. 261, 267, 188 S.E.2d 336 (1972). Nonetheless, "[i]f the defendant plead[ed] not guilty . . . and the jury return[ed] a guilty verdict without
recommending life imprisonment, the death sentence bec[ame] mandatory." State v. Peele, 274 N.C. 106, 110, 161 S.E.2d 568 (1968). Statutory
schemes of this sort were struck down as unconstitutional in United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968), and Pope
v. United States, 392 U.S. 651, 88 S. Ct. 2145, 20 L. Ed. 2d 1317 (1968), on the basis that a statutory mandate for the death penalty, absent a guilty
plea by a defendant, unnecessarily impinged upon a defendant's constitutional rights to maintain their innocence and to a jury trial. As such,
N.C.G.S. § 15-162.1 was repealed by Act of Mar. 25, 1969, ch.117, § 1, 1969 N.C. Sess. Laws 104, 104. See State v. Niccum, 293 N.C. 276, 282, 238
S.E.2d 141 (1977).
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interfere with the discretion afforded to these constitutional officers. The State is not required to
offer a defendant a plea of any sort, and the fact that a plea is offered in which the defendant is given
a choice [***110] between pleading guilty or having a trial by jury is not a constitutional violation.
P. Lethal Injection as Cruel and Unusual
Defendant asserts that North Carolina's method of lethal injection is cruel and unusual and therefore
unconstitutional under the Eighth and Fourteenth Amendments to the United States Constitution
and Article I, Section 27 of the North Carolina Constitution. Defendant concedes that "he cannot
show how those drugs would cause needless suffering," yet asserts that the unknown risks of the
procedure render it unconstitutional.
In North Carolina, "the mode of executing a death sentence must in every case be by administering
to the convict or felon an intravenous injection of a substance or substances in a lethal quantity
sufficient to cause death and until the person is dead." N.C.G.S. § 15-188 (2023). The specific
procedure is "determined by the Secretary of the Department of Adult Correction, who shall ensure
compliance with the federal and State constitutions." Id.
The Supreme Court of the United States has held that "[w]hen a method of execution is authorized
under state law, a party contending that this method violates the Eighth Amendment bears the
burden of [*864] showing that the method creates an unacceptable risk of pain." Glossip v. Gross, 576
U.S. 863, 884, 135 S. Ct. 2726, 192 L. Ed. 2d 761 (2015). To meet this burden, a defendant must (1)
"establish that the State's method of execution [***111] presents a substantial risk of serious harm—
severe pain over and above death itself"; and (2) "identify an alternative method that is feasible,
readily implemented, and in fact significantly reduces the risk of harm involved." Nance v. Ward, 597
U.S. 159, 164, 142 S. Ct. 2214, 213 L. Ed. 2d 499 (2022) (cleaned up).10 "Only through a comparative
exercise . . . can a judge decide whether the State has cruelly superadded pain to the punishment of
death." Id. (cleaned up). To raise constitutional concerns, the method of execution must "present[ ] a
risk that is 'sure or very likely to cause serious illness and needless suffering,' and give rise to 'sufficiently
imminent dangers.'" Glossip, 576 U.S. at 877 (quoting Baze v. Rees, 553 U.S. 35, 50, 128 S. Ct. 1520,
170 L. Ed. 2d 420 (2008)). A defendant's challenge fails if they cannot "show that the risks they
identified [are] substantial and imminent, and [if] they [have] not establish[ed] the existence of a
known and available alternative method of execution that would entail a significantly less severe risk."
Id. at 878 (citing Baze, 553 U.S. at 56-60).
Here, defendant concedes that he has failed to meet his burden under Glossip and Baze. Instead, he
asks this Court to strike down the method of execution under N.C.G.S. § 15-188 based on
hypothetical risks. Because defendant has failed to articulate how North Carolina's lethal injection
procedure creates a "substantial [***112] risk of serious harm" and has failed to "identify an
10 The Supreme Court held that N.C.G.S. § 15-188, in addition to fourteen similar state statutes that "authorize only the use of lethal injection[,]" is
a "more humane way[ ] to carry out death sentences." Nance, 597 U.S. at 163 (quoting Glossip, 576 U.S. at 868).
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alternative method that is feasible, readily implemented, and in fact significantly reduces the risk of
harm involved," see Nance, 597 U.S. at 164 (cleaned up), we reject this argument.
Q. Preservation Issues
Defendant raised two issues for preservation which he concedes have been repeatedly rejected by this
Court: (1) that this Court should invalidate the death penalty in this State on the basis of international
norms, human rights, and prevailing standards of decency; and (2) that the indictment was
insufficient to make this a capital case because it did not include any elements which [**278] elevate
the crime of murder from second-degree to first-degree or allege aggravating circumstances.
Defendant presents these issues in order to "permit[ ] this Court to reexamine its prior holdings and
to preserve these arguments for any possible further judicial review.
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