The opinion of the court was delivered by: Orr, Justice.
On writ of certiorari pursuant to N.C.G.S. § 7A-32 to review a judgment imposing a sentence of life imprisonment entered by Sitton, J., on 31 March 1995 in Superior Court, Catawba County, upon a jury verdict of guilty of first-degree murder and first-degree sexual offense. Heard in the Supreme Court 20 November 1997.
On 6 December 1993, defendant was indicted for first-degree murder in violation of N.C.G.S. § 14-17 and first-degree sexual offense in violation of N.C.G.S. § 14-27(a)(1). Defendant pled not guilty to both charges. On 29 March 1995, the jury returned verdicts of guilty as charged on both counts. Following a sentencing hearing, the jury recommended that defendant receive a sentence of life imprisonment for the first-degree murder conviction. Thereafter, the trial court sentenced defendant to two consecutive life terms for the convictions.
On 31 March 1995, defendant filed notice of appeal. In accordance with Rule 25 of the North Carolina Rules of Appellate Procedure, an order was entered on 19 March 1996 dismissing defendant's appeal because he had failed to perfect it within the time period allowed. Having lost his statutory right to appeal, defendant filed a petition for writ of certiorari to this Court pursuant to Rule 21 of the North Carolina Rules of Appellate Procedure. We granted review on 7 February 1997.
Based substantially on the testimony of Brenda Finch, the evidence presented at trial tended to show the following facts. In January 1993, defendant began having an extramarital affair with Brenda Finch. Brenda was married to Brian Finch and had one child from the marriage, Robbie, the two-year-old victim in this case who was murdered and sexually assaulted.
In October 1993, Brenda left her husband Brian and moved into defendant's home. She left Robbie in the care of his natural father upon leaving the marital home. Two weeks later, on Friday, 22 October 1993, Brenda picked Robbie up from a sitter and took him to defendant's home. No incidents occurred on that Friday. On the following day, however, Brenda heard Robbie scream while she was inside defendant's house. Brenda had gone inside the house for only a moment, leaving Robbie and defendant alone in the front yard. When Brenda asked what happened, defendant asserted that he had to "tap" Robbie on the behind because the child had gotten too close to the road.
The following Sunday, 24 October 1993, another incident occurred. At approximately 4:00 p.m., Brenda went to work at K-Mart and left defendant to care for Robbie. That evening at 7:00 or 8:00 p.m., she called defendant from work to inquire about Robbie. Defendant told her that he could not talk at the moment because Robbie had fallen out of the bathtub, hit his head pretty hard, and was screaming. At 10:00 p.m., Brenda arrived home and found Robbie sleeping on the couch. The next morning, she noticed a bruise on each side of Robbie's face. Defendant said that the bruise on the left side of his face was from Robbie's falling out of the bathtub. The other bruise, he said, resulted from defendant accidentally hitting Robbie in the face with a door that he opened, not knowing that Robbie was behind it. Both injuries occurred while Robbie was in defendant's exclusive care from 4:00 to 10:00 p.m. on that Sunday.
On Monday, Brenda went to work at about 6:00 p.m. and left Robbie in the care of his natural father, Brian. Brian saw the bruises on his son's face and immediately became very upset. Brenda explained to Brian that defendant had told her that the injuries were accidental. Brian responded by explaining that he did not want it to happen again. Later that evening, however, Brian took Robbie to visit three neighbors and asked each neighbor to look at Robbie's bruises. He discovered also that evening that his electricity had been cut off and therefore returned Robbie to Brenda at about 8:00 or 8:30 p.m. after she had gotten off work.
On Tuesday, 26 October 1993, Brenda stayed home with Robbie for most of the day. In the afternoon, she left Robbie with Brian while she did laundry for two hours. At this point, both Brenda and Brian noticed that Robbie was behaving strangely. Brenda saw Robbie walk directly into a door, and Brian noticed that Robbie, a typically active child, was lethargic and not interested in toys or other people. Despite these observations, Brenda took Robbie back to defendant's home and put him to bed.
On Wednesday, 27 October 1993, Brenda asked defendant to take care of Robbie for a few hours while she retrieved her property from Brian's home. Robbie remained in defendant's care for about two hours while Brenda was gone. After moving, Brenda again left Robbie in defendant's care for about an hour while she went to a job interview. Upon returning from the interview, Brenda saw that Robbie had two new bruises on his arm and new bruises on both sides of his neck. In contrast to how she had left him, he was now also vomiting, he had diarrhea, and his eyes were crossed. After inquiring about what happened to bring about these changes in Robbie, defendant admitted that he may have caused the bruises. The bruise on Robbie's arm, he said, came from his grabbing Robbie too tight when he tried to stop him from falling off the couch. The neck bruises, he said, were possibly caused by his holding Robbie too tight under his chin while he wiped his nose. Brenda gave Robbie medicine for the vomiting and decided to take him to the emergency room the next morning. That evening, she stayed up with him all night because he woke up every hour wanting something to eat or drink.
The next day at about noon, Brenda took Robbie to the emergency room at Catawba Memorial Hospital where Dr. Steven Williamson examined him. Dr. Williamson noted the bruises on Robbie's face and neck and his difficulty in walking straight. After a CAT scan was taken, Dr. James Owsley, the attending radiologist, read it as being normal. This reading was later found to be incorrect because the report did show bleeding in Robbie's brain. At the time, however, there was no explanation for the problems that Robbie was experiencing. Dr. Williamson, who remained troubled by the symptoms, made an appointment for Robbie with a pediatrician for the following morning at 8:00 a.m. Robbie was released at about 2:30 or 3:00 p.m., and he and Brenda returned to defendant's home.
Three hours later, Brenda went to work at K-Mart and left Robbie in defendant's care once again. When she arrived home at about 10:00 p.m., she found Robbie sleeping on the couch. His pants were soaking wet, which was unusual because Robbie was potty trained and did not typically wet himself. After removing the wet pants, Brenda placed a towel across Robbie, and then she and defendant went to bed. This was at about midnight. Brenda could hear Robbie snoring in the other room as she dozed off. At some point during the night, Brenda woke up and saw defendant standing over Robbie. She asked defendant if Robbie was all right, and he replied that Robbie was fine. After this exchange, both Brenda and defendant went back to sleep. At about 5:00 a.m., however, Brenda woke up, checked on Robbie, and thought that he looked dead. Brenda yelled to defendant to call 911, but he said that he did not believe that 911 could do anything. Brenda then called 911. The police and paramedics subsequently arrived and took Robbie to Glen R. Frye Hospital, where he was pronounced dead. Later, it was determined that Robbie died from head trauma that resulted in massive bleeding over the surface of both sides of his brain causing a subdural hematoma and compression of the brain stem.
Several physicians testified to the myriad bruises and injuries found on Robbie's body on the morning of his death. Dr. Dennis Kimbleton observed Robbie that morning and said that he had bruises on his face, chin, jaw, arms, knee, hip, shoulders, and lower leg. Dr. Sara Sinal, a pediatrician, testified to the large number of bruises and explained that the location of the bruises indicated that the injuries were not inadvertent. Also, Dr. Sinal stated that the brain injury that Robbie had was a common injury in child abuse cases and that based on that injury as well as the other physical traumas, she believed that Robbie had died from battered child syndrome. Dr. James Parker, the pathologist who performed the autopsy, testified that in his Robbie had been physically abused and that the two severe brain hemorrhages were the result of trauma to the skull from a blunt object, such as a club, bat, or hand. Dr. Sam Auringer, another State witness, testified that bleeding between the hemispheres of a child's brain is a relatively specific sign for child abuse due to shaking and that in his opinion, Robbie had been severely abused. Dr. Gregory Davis reviewed the autopsy report, CAT scan, and photographs and testified that, in his opinion, Robbie died as a result of child abuse. Dr. Davis also stated that the injuries were not the kind that would result from falling out of a bathtub; he explained that the brain injury was indicative of child abuse and that the location and pattern of the bruises on Robbie's body indicated that the injuries were not accidental.
Dr. Kimbleton and Dr. Parker also testified to an anal injury that was discovered on Robbie on the morning of his death. Dr. Kimbleton observed that Robbie's rectum was bruised and stretched and that there was blood in his rectal canal and a smear of blood in the crease between his right and left buttock. Dr. Parker, when performing the autopsy, also observed this tear in the lining of Robbie's rectum and noticed that his anal canal was dilated wider than normal. A Caucasian hair, not matching defendant's hair, and several dark pubic hairs were found in the area of Robbie's buttocks.
In defendant's first assignment of error, he asserts that the trial court erred by admitting evidence of prior bad acts, thus violating Rule 404(b) of the North Carolina Rules of Evidence. Having not objected to this evidence at trial, defendant alleges this error for the first time on appeal under the plain error rule. The plain error rule holds that the Court may review alleged errors affecting substantial rights even though the defendant failed to object to admission of the evidence at trial. State v. Cummings, 346 N.C. 291, 313, 488 S.E.2d 550, 563 (1997), cert. denied, ___ U.S. ___, ___ L. Ed. 2d ___, 66 U.S.L.W. 3491 (1998). This Court has chosen to review such "unpreserved issues for plain error when Rule 10(c)(4) of the Rules of Appellate Procedure has been complied with and when the issue involves either errors in the trial Judge's instructions to the jury or rulings on the admissibility of evidence." Id. at 313-14, 488 S.E.2d at 563. The rule must be applied cautiously, however, and only in exceptional cases where
"after reviewing the entire record, it can be said the claimed error is a `fundamental error, something so basic, so prejudicial, so lacking in its elements that Justice cannot have been done,' or `where [the error] is grave error which amounts to a denial of a fundamental right of the accused,' or the error has `"resulted in a miscarriage of Justice or in the denial to appellant of a fair trial"' or where the error is such as to `seriously affect the fairness, integrity or public reputation of judicial proceedings' . . . ."
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.) (footnotes omitted), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)). Thus, the appellate court must study the whole record to determine if the error had such an impact on the guilt determination, therefore constituting plain error. Id. at 661, 300 S.E.2d at 378-79.
A review of the evidence in the present case reveals that this is not the exceptional case where such a pervasive defect or plain error occurred which would have tainted all results and denied defendant a right to a fair trial. Defendant alleges that admission of statements that he made to Investigator John Little in a taped interview about his prior assault conviction, probation, and alcoholism violated ...