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State v. Warren

May 08, 1998


The opinion of the court was delivered by: Parker, Justice

Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a sentence of death entered by Greeson, J., at the 18 March 1996 Criminal Session of Superior Court, Guilford County, upon a jury verdict of guilty of first-degree murder. Heard in the Supreme Court 15 October 1997.

Defendant Lesley Eugene Warren was indicted on 17 September 1990 for the first-degree murder of Katherine Johnson ("victim"). The jury found defendant guilty of first-degree murder on the basis of premeditation and deliberation. Following a capital sentencing proceeding, the jury recommended a sentence of death; and the trial court entered judgment in accordance with that recommendation.

The State's evidence tended to show the following. On 15 July 1990 Terri Quinby attended the Radisson Hotel employees' picnic held at Cedrow Park in High Point, North Carolina, with her two brothers, her sister, and her children and their children. Defendant went with Ms. Quinby and her family to the picnic. Ms. Quinby introduced the victim, whom she knew when the victim worked part-time in the Radisson gift shop, to defendant at the picnic where they played softball, ate, and drank beer.

After the picnic, around 4:00 p.m., many of the Radisson group, including defendant, went to Applebee's. At Applebee's defendant told Ms. Quinby's brother Freddy he would "have her [the victim] by the end of the night" and that "he would have her [the victim] before the night was over, for us to watch and see." Ms. Quinby and the rest of her family along with defendant and the victim went to the house of Ms. Quinby's sister, Robin, for dinner. The victim rode with defendant on his motorcycle, and Robin drove the victim's car from Applebee's to Robin's house.

At approximately 9:00 p.m. they all went to Ms. Quinby's house. After sitting on the porch for a while, defendant and the victim went for a motorcycle ride. They drove by Ms. Quinby's house around 11:30 p.m. Defendant returned about an hour later to get the victim's car. He said that the victim could not drive it and that they were going to get a room at the Town House Motel.

On the morning of 16 July 1990, defendant was sleeping on Ms. Quinby's couch. He said that he left the victim at the motel and walked back so that she could drive to class that morning. Defendant spent the week at Ms. Quinby's house.

On 20 July 1990 High Point police arrested defendant at the Quinby house on a South Carolina warrant. When he was arrested and searched, the police found a set of keys which defendant claimed were his; the police later discovered that the keys were to the victim's car.

Defendant was transported to Asheville, in Buncombe County, North Carolina, and was questioned about murders in Asheville and South Carolina. Defendant confessed to the victim's murder in High Point and told Asheville police that he had placed the victim's body in the trunk of her car and had parked it in a parking deck near the Radisson. High Point police located the victim's car and found the victim's naked, decaying body in the trunk, with a bra wrapped around her neck. Defendant's fingerprints were found outside the driver's side door, and his right palm print was found on the outside of the trunk. Defendant had further stated that he and the victim had had sex in a soccer field. High Point officers searched the athletic field and found the victim's shoes near an unmown grass embankment.

The autopsy revealed areas of hemorrhage indicating strangulation by pressure to the neck. The pathologist determined that the cause of death was asphyxia due to strangulation. The victim's decomposed body was identified by using dental records.

Defendant presented no evidence at the guilt phase.

Additional facts will be presented as needed to discuss specific issues.


By his first assignment of error, defendant contends that his confession was obtained in violation of his Fifth Amendment right against self-incrimination and his Sixth Amendment right to counsel. Defendant bases his argument on the following facts.

On 28 May 1990 Asheville Police Department Detective Lambert questioned defendant about the disappearance of Jayme Hurley. Defendant admitted he saw Hurley on 24 May 1990, the day she disappeared, and consented to leaving his van at the Police Department so that it could be searched.

Upon returning on 29 May 1990 to pick up his van, defendant was advised of his Miranda rights and signed a rights waiver form. He was informed that the police had found a pocketbook in his van which defendant first said belonged to his wife, but Detective Lambert then told defendant that the pocketbook was identified as belonging to Hurley. After this conversation defendant stated that he may need or may want to get an attorney. Despite defendant's request for counsel, the officers decided that because Hurley might still be alive, they would continue the questioning. During the questioning defendant stated that Hurley had died from a cocaine overdose and that defendant had thrown her body into the French Broad River.

Upon Conclusion of the questioning, defendant was arrested on an outstanding arrest warrant for failure to produce title to a motor vehicle and for misdemeanor larceny of Hurley's pocketbook. Defendant was represented by Scott Jarvis at the bond hearing on the misdemeanor charges. At this hearing on 7 June 1990, the district attorney anticipated additional charges; but at the time he was not ready to file these charges. The Judge reduced defendant's bond, and defendant was released.

On 7 June 1990 defendant went to the Police Department to get his van. Detective Lambert asked for and defendant consented to give blood, hair, and urine samples. After the samples were collected, defendant agreed to return the next day to talk to Detective Lambert about Hurley. Defendant did not return on 8 June 1990; instead, his mother and Keith Cochrane, Mr. Jarvis' investigator, both left messages that Mr. Jarvis wanted to be present for anything further concerning the misdemeanor charges or the Hurley disappearance.

As a result of Detective Lambert's investigation in South Carolina to obtain background information on defendant from his family, Detective Lambert learned that the South Carolina authorities suspected defendant of a homicide in the Spartanburg area. Through the use of a trap and trace device on the phone of defendant's wife, South Carolina officials located defendant in High Point and issued a warrant for his arrest for first-degree murder and kidnapping.

On 20 July 1990 the High Point Police Department was notified that there was an outstanding South Carolina warrant for defendant's arrest. Defendant was arrested at Terri Quinby's house at 2:44 p.m. by High Point police; he was taken to the police station until Asheville police arrived; and about 6:30 p.m., an officer of the Asheville Police Department took him back to Asheville. Although Mr. Cochrane asked Asheville police to notify Mr. Jarvis when defendant arrived in Asheville, he was never contacted. Defendant arrived in Asheville and was interviewed by Detective Lambert at 9:10 p.m. after defendant was advised of and waived his rights without ever invoking his Fifth Amendment right to have counsel present. Detective Lambert questioned defendant about the South Carolina and Asheville homicides as well as another murder for which defendant was implicated in New York. Defendant willingly discussed the murders and confessed to committing all three murders, including the murder of Hurley in Asheville. Then Detective Lambert told defendant he thought there were more killings and that now would be a good time to admit to them. Defendant then confessed to killing Katherine Johnson in High Point--the case sub judice--and explained the events leading up to and following her death. The High Point Police Department was informed of these facts, and from this information High Point officers discovered the body of Katherine Johnson in the trunk of her car. At approximately 12:09 a.m. on 21 July 1990, defendant signed a statement confessing to the four murders. Subsequent to that statement defendant willingly discussed the murders with investigators from other agencies.

On the morning of 21 July 1990, an arrest warrant was issued for defendant by a Guilford County magistrate. That afternoon Lieutenant Dunn of the High Point Police Department served the warrant on defendant in Asheville. Defendant told Lieutenant Dunn that he would like to speak with High Point investigators concerning the victim's murder.

On Monday, 23 July 1990, Detectives Grubb and McNeill of the High Point Police Department and Special Agent Bob Padgett with the State Bureau of Investigation ("SBI") went to Asheville to interview defendant. Defendant was again given the Miranda warnings and willingly waived his rights. During this interview someone poked his head in the door and closed the door when defendant made an arm motion at him as if to say "go on and leave us alone." Defendant said, "my lawyer," and continued talking to the officers. This person was later identified as Mr. Cochrane. Defendant never asked to have an attorney present during the interview. At the Conclusion of the interview, defendant stated he would be glad to talk to the officers again.

Prior to trial defendant moved to suppress his confession to the Johnson murder on the grounds that his Sixth Amendment and Fifth Amendment rights had been violated. The trial court denied defendant's motion, finding no constitutional violations surrounding his confession to the murder in this case. On appeal defendant assigns error to the trial court's finding; we reject defendant's argument.

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." U.S. Const. amend. VI. Further, the police may not interrogate a defendant whose Sixth Amendment right has attached unless counsel is present or the defendant expressly waives his right to assistance of counsel. State v. Nations, 319 N.C. 318, 324, 354 S.E.2d 510, 513 (1987). The United States Supreme Court has stated that "once this right to counsel has attached and been invoked," any subsequent waiver of this right by a defendant during a police-initiated custodial interrogation is a nullity; thus, any inculpatory statements made by a defendant to police during such interrogation must be suppressed. Michigan v. Jackson, 475 U.S. 625, 636, 89 L. Ed. 2d 631, 642 (1986). A defendant's Sixth Amendment right to counsel attaches only when adversary judicial proceedings have been initiated, either "by way of formal charge, preliminary hearing, indictment, information or arraignment." Kirby v. Illinois, 406 U.S. 682, 689, 32 L. Ed. 2d 411, 417 (1972); see generally United States v. Gouveia, 467 U.S. 180, 81 L. Ed. 2d 146 (1984).

However, the Sixth Amendment is offense-specific and "cannot be invoked once for all future prosecutions." McNeil v. Wisconsin, 501 U.S. 171, 175, 115 L. Ed. 2d 158, 166-67 (1991). Thus, the holding in Michigan v. Jackson, invalidating post-attachment waivers in police-initiated interviews, is likewise offense-specific. Id. at 175, 115 L. Ed. 2d at 167.

The police have an interest . . . in investigating new or additional crimes . . . [in which they may be seeking evidence on] individuals already under indictment. . . . [T]o exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public's interest in the investigation of criminal activities.

Maine v. Moulton, 474 U.S. 159, 179-80, 88 L. Ed. 2d 481, 498 (1985). The Court went on to note that "[i]ncriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses." Id. at 180 n.16, 88 L. Ed. 2d at 499 n.16. In this case, when defendant was arrested in High Point, his Sixth Amendment right to counsel had not attached to any of the homicides because no adversary judicial proceedings had been instituted in the murder cases. Therefore, we must overrule defendant's assignment of error.

Defendant further contends that, notwithstanding the offense-specific nature of the Sixth Amendment right to counsel, the confession should have been suppressed because the offense in this case is inextricably intertwined with crimes for which the Sixth Amendment right had attached at the time of his confession. While recognizing that some jurisdictions have enunciated a "very closely related crime" exception, this exception has very limited application. See Bromfield v. Freeman, 923 F. Supp. 783, 787 (E.D.N.C. 1996) ("where the offense to which the right has attached is a lesser-included offense of the uncharged offense . . . there can only be a single offense for purposes of the Sixth Amendment"), appeal dismissed, 121 F.3d 697 (4th Cir. 1997). Even assuming arguendo that the misdemeanor pocketbook larceny offense, to which defendant's Sixth Amendment right had attached, was "inextricably intertwined" with the Hurley murder in Asheville such that defendant's confession to the Hurley murder was barred under the holding in Michigan v. Jackson, any Sixth Amendment right related only to that murder. Because defendant had yet to commit the Johnson murder in High Point at the time his Sixth Amendment rights attached with respect to the misdemeanor larceny, he could not have invoked his Sixth Amendment right to counsel as to that murder. Accordingly, there is no bar to the admission of defendant's statements in this case. Likewise, we reject defendant's argument that pursuant to Article I, Section 23 of the North Carolina Constitution and N.C.G.S. § 15-4, his state constitutional and statutory rights have been violated.

Defendant also argues a Fifth Amendment violation of his right to counsel. The Fifth Amendment of the United States Constitution guarantees that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. In Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966), the United States Supreme Court determined that the prohibition against self-incrimination requires that prior to a custodial interrogation, the alleged defendant must be advised that he has the right to remain silent and the right to the presence of an attorney. Id. at 479, 16 L. Ed. 2d at 726. The Court further held that the accused could "knowingly and intelligently waive[] his privilege against self-incrimination and his right to retained or appointed counsel." Id. at 475, 16 L. Ed. 2d at 724. However, if he requests counsel, "the interrogation must cease until an attorney is present." Id. at 474, 16 L. Ed. 2d at 723.

The question then becomes "whether a reasonable person in [defendant's] position would believe that he had been taken into custody or otherwise deprived of his freedom of action in any significant way." State v. Davis, 305 N.C. 400, 410, 290 S.E.2d 574, 580-81 (1982). In this case the trial court found as fact that defendant was in custody during the questioning on 29 May 1990 at the Asheville Police Department and that defendant invoked his Fifth Amendment right to counsel during that interview. The question then is whether defendant's assertion of his Fifth Amendment rights on 29 May 1990 mandates suppression of his confession on 20 July 1990 to the murder of Katherine Johnson on 15 July 1990.

The United States Supreme Court has established that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused . . . having expressed his desire to deal with the police only through counsel[] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

Edwards v. Arizona, 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 386 (1981). Defendant argues that by reinitiating custodial interrogation 20 July 1990, the police violated his Fifth Amendment rights. However, defendant does not challenge the trial court's finding that there had been a break in custody between defendant's assertion of his rights on 29 May 1990 and his confession on 20 July 1990. Therefore, we must overrule defendant's assignment of error on this issue.

Since Edwards the Supreme Court has stated that the rule in Edwards is applicable only if there has been no break in custody, McNeil v. Wisconsin, 501 U.S. at 177, 115 L. Ed. 2d at 167-68, and we have adopted this clarification of Edwards:

"If police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect's statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards."

State v. Torres, 330 N.C. 517, 524, 412 S.E.2d 20, 24 (1992) (quoting McNeil v. Wisconsin, 501 U.S. at 177, 115 L. Ed. 2d at 167-68); see McFadden v. Garraghty, 820 F.2d 654, 661 (4th Cir. 1987) (holding that two breaks in custody served to sever any causal link between the initial unlawful interrogation and the voluntary confessions); United States v. Skinner, 667 F.2d 1306, 1309 (9th Cir. 1982) (stating that Edwards did not preclude further questioning when defendant was released from custody and had opportunity to contact counsel), cert. denied, 463 U.S. 1229, 77 L. Ed. 2d 1410 (1983). Defendant asserted his right to counsel on 29 May 1990; was released from custody on 7 June 1990; and was not in custody again until 20 July 1990 when he was arrested, advised of his rights, and knowingly and intelligently waived them. We hold the "break in custody" makes the rule in Edwards inapplicable and defendant's confession to the Johnson murder obtained in the subsequent police-initiated interrogation following his arrest on 20 July 1990 was admissible. Defendant's motion to suppress his confession was properly denied by the trial court.

Defendant next contends that the trial court's denial of his motion to have the jury consider life without the possibility of parole as a sentencing option violated his constitutional rights. We disagree.

Defendant asserts that he was entitled to an instruction that a sentence of life imprisonment "means a sentence of life without parole." At the time defendant committed the murder of Katherine Johnson in 1990, a person serving a life sentence was eligible for parole after twenty years. N.C.G.S. § 15A-1371(a1) (1988). In 1994 the General Assembly repealed this statute and amended N.C.G.S. § 15A-2002 to require the requested instruction for offenses occurring on or after 1 October 1994. This Court has acknowledged the intent of the legislature to apply N.C.G.S. § 15A-2002 prospectively. State v. Fullwood, 343 N.C. 725, 741, 472 S.E.2d 883, 891 (1996), cert. denied, ___ U.S. ___, 137 L. Ed. 2d 339 (1997). Further, retroactive application of the amendment would violate the constitutional prohibition of ex post facto laws because it increases the punishment for first-degree murder. Defendant recognizes the ex post facto problem and offers to waive this constitutional protection. This identical argument was raised and rejected in State v. Conner, 345 N.C. 319, 331-32, 480 S.E.2d 626, 631, cert. denied, ___ U.S. ___, 139 L. Ed. 2d 134 (1997), and State v. Fullwood, 343 N.C. at 741-42, 472 S.E.2d at 891-92. We see no reason to depart from this sound holding. For the trial court to instruct the jury according to the amended statute would have been improper. Accordingly, the trial court did not err in refusing to do so.

Next, defendant contends that the trial court erred in dismissing defendant's motion for appointment of counsel to prosecute a motion for appropriate relief regarding defendant's prior conviction for first-degree murder in Buncombe County, North Carolina, thereby violating his constitutional rights. Believing that defendant's guilty plea and conviction for the murder of Jayme Hurley in Buncombe County were unreliable and that the State would use that conviction as an aggravating circumstance in this case, defense counsel sought to have counsel appointed to prosecute a motion for appropriate relief in Buncombe County to determine the reliability of the guilty plea and prior conviction prior to having that conviction used as an aggravating circumstance. The trial court denied this pretrial motion stating that since defendant's Buncombe County case was on appeal to this Court, under N.C.G.S. § 15A-1418 the appropriate jurisdiction for the motion was the North Carolina Supreme Court.

While it is true that pursuant to N.C.G.S. § 7A-451(a)(3) the trial court had the authority to grant defendant's motion for appointment of counsel, defendant has not shown how the denial of this motion has prejudiced him. Further, defendant has not shown how the use of the guilty plea and prior conviction in Buncombe County violated his constitutional rights in this case. Moreover, defendant may still file a motion for appointment of counsel to prosecute a motion for appropriate relief. We, therefore, hold that the trial court did not abuse its discretion by denying defendant's motion for appointment of counsel.


Defendant next argues that the trial court erred in excusing for cause juror Alma Larson based on her opposition to the death penalty on religious grounds, thereby denying defendant his rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution.

The test for determining when a juror may be excused for cause is whether his views "would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Wainwright v. Witt, 469 U.S. 412, 424, 83 L. Ed. 2d 841, 851-52 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 65 L. Ed. 2d 581, 589 (1980)). The fact that a prospective juror "voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction" is not sufficient. Witherspoon v. Illinois, 391 U.S. 510, 522, 20 L. Ed. 2d 776, 784-85 (1968).

Defendant does not contend that Larson in fact could perform her duties as a juror in accordance with her oath. In response to the trial court's inquiry as to whether she would always vote against the death sentence and always for life imprisonment, Larson answered in the affirmative. Instead, just as the defendant in State v. Davis argued, defendant here argues that because her opposition to capital punishment was based on the teachings of her religion, her "exclusion from the jury violated constitutional principles regarding the free exercise of religion and the right to serve as a juror regardless of one's religion." State v. Davis, 325 N.C. 607, 625, 386 S.E.2d 418, 427 (1989), cert. denied, 496 U.S. 905, 110 L. Ed. 2d 268 (1990). Since Larson was excused based on her "inability to follow the law[, t]he fact that the prospective juror's religion provided the basis for [her] views did not alter the propriety of excluding [her] for cause." Id. at 625-26, 386 S.E.2d at 427. We find no compelling reason to depart from Davis.

In addition to the arguments used in Davis, defendant submits that Article I, Section 26 of the North Carolina Constitution creates a liberty interest in defendant having prospective jurors not excused due to their religious beliefs and that to do so would result in a violation of due process. Article I, Section 26 of the North Carolina Constitution provides that "[n]o person shall be excluded from jury service on account of sex, race, color, religion, or national origin," but as stated above, Larson was excluded (as was the juror in Davis) under the Witt test based solely on her inability to perform her lawful duties as a juror. We find no merit in this assignment of error.

Defendant next contends that if the ruling in Davis is not overturned, then N.C.G.S. § 15A-2000 is unconstitutional in that it permits jurors to be excluded based on their religious beliefs. We likewise find no merit to this assignment of error in that Larson was excused under Witt, and for this reason no constitutional provisions were implicated.

Defendant next argues that the trial court committed reversible error by admonishing jurors that no juror would be excused for business reasons, thus limiting free and open responses during jury selections and restricting defendant's ability to exercise peremptory and for cause challenges.

"[T]he trial Judge has broad discretion to see that a competent, fair and impartial jury is impaneled and rulings of the trial Judge in this regard will not be reversed absent a showing of abuse of discretion." State v. Johnson, 298 N.C. 355, 362, 259 S.E.2d 752, 757 (1979). Pursuant to N.C.G.S. § 15A-1212(9) the grounds for challenging a juror for cause include the juror's inability to render a fair and impartial verdict.

The trial court's comment is similar to the one at issue in Fullwood. In that case the jurors were warned to "be cautious in what you may say, and do not say, and do not say anything that would tend to taint any other juror." State v. Fullwood, 343 N.C. at 734, 472 S.E.2d at 887. The defendant's argument that this instruction tended to inhibit prospective jurors from disclosing prejudicial information was found to have no merit. Similarly, defendant's argument in the present case that the Judge's comment had a chilling effect on jurors' responses is not borne out by the record. In fact two potential alternate jurors asked to be and were excused with consent of counsel for business reasons after the Judge's remarks. Defendant has failed to show that the trial court abused its discretion or that defendant was prejudiced by the impaneled jury; therefore, we reject defendant's argument on this point.


Defendant next argues that the trial court erred in denying his motion to dismiss the first-degree murder charge. Defendant asserts that the evidence was insufficient to prove premeditation and deliberation.

This Court has repeatedly stated that when determining the sufficiency of the evidence to support a charged offense, the evidence must be viewed "in the light most favorable to the State, giving the State the benefit of every reasonable inference." State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). A defendant's motion to dismiss must be denied if the evidence considered in the light most favorable to the State permits a rational jury to find the existence of each element of the charged crime beyond a reasonable doubt. See State v. Williams, 334 N.C. 440, 447, 434 S.E.2d 588, 592 (1993), sentence vacated on other grounds, 511 U.S. 1001, 128 L. Ed. 2d 42 (1994).

The test for sufficiency is the same whether the evidence presented is direct or circumstantial or both. State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991); State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 388 (1984). "Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence." State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988). If the evidence supports that a reasonable inference of defendant's guilt may be drawn from the circumstances, then "it is for the [jurors] to decide whether the facts, taken singly or in combination, satisfy them beyond a reasonable doubt that the defendant is actually guilty." State v. Rowland, 263 N.C. 353, 358, 139 S.E.2d 661, 665 (1965).

Applying the foregoing rules to the evidence presented in this case, we conclude that there was sufficient evidence from which a rational jury could find that defendant killed Katherine Johnson with premeditation and deliberation.

First-degree murder is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation. State v. Taylor, 337 N.C. 597, 607, 447 S.E.2d 360, 367 (1994). Premeditation means that the act was thought over beforehand for some length of time, however short; but no particular amount of time is necessary for the mental process of premeditation. State v. Conner, 335 N.C. 618, 635, 440 S.E.2d 826, 835-36 (1994). Deliberation means an intent to kill, carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by legal provocation or lawful or just cause. State v. Hamlet, 312 N.C. 162, 170, 321 S.E.2d 837, 842-43 (1984). In State v. Taylor, 337 N.C. 597, 447 S.E.2d 360 (1994), we held that want of provocation on the part of the deceased, the brutality of the murder, and attempts to cover up involvement in the crime are among other circumstances from which premeditation and deliberation can be inferred. Id. at 607-08, 447 S.E.2d at 367. In this case the State's evidence showed a lack of provocation by the victim, that defendant manually strangled Katherine Johnson to death, that he crammed her body into the car trunk, that he parked the car in a parking deck, and that he fabricated a story to conceal the murder. These facts permit the inference that defendant acted with premeditation and deliberation, and the trial court properly denied defendant's motion to dismiss.

Defendant next assigns error to the trial court's sustaining an objection and later objecting ex mero motu to defense counsel's closing argument. We disagree.

During his closing argument defense counsel attempted to explain the meaning of proof beyond a reasonable doubt and quoted a jury instruction used in State v. Phillip, 261 N.C. 263, 134 S.E.2d 386, cert. denied, 377 U.S. 1003, 12 L. Ed. 2d 1052 (1964). The prosecutor's initial objection was overruled by the trial court. Defense counsel then quoted from Phillip as follows:

MR. BRYSON [defense counsel]: . . . .

"A reasonable doubt is a fair and honest doubt based on common sense and reason[] and one that leaves your mind so that you cannot say that you have an abiding conviction to a moral certainty of the defendant's guilt." [Id. at 268, 134 S.E.2d at 391.]

Later on, it [Phillip] says this:

"If the jurors are not satisfied to a moral certainty of the defendant's guilt, they have a reasonable doubt." [Id. at 269, 134 S.E.2d at 391.]

MR. KIMEL [the prosecutor]: We object to that.

Objection sustained to that.

MR. KIMEL: It's not ...

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