               IN THE SUPREME COURT OF NORTH CAROLINA

                                     No. 86A12

                                FILED 10 April 2015

STATE OF NORTH CAROLINA

              v.
DANNY ROBBIE HEMBREE, JR.




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

a sentence of death entered by Judge Beverly T. Beal on 18 November 2011 in

Superior Court, Gaston County, upon a jury verdict finding defendant guilty of first-

degree murder. On 25 April 2013, while defendant’s direct appeal was still pending,

defendant filed a motion for appropriate relief with this Court pursuant to N.C.G.S.

§ 15A-1418. Heard in the Supreme Court on 14 October 2013.


      Roy Cooper, Attorney General, by Robert C. Montgomery, Special Deputy
      Attorney General, and Derrick C. Mertz, Assistant Attorney General, for the
      State.

      Marilyn G. Ozer and William F.W. Massengale for defendant-appellant.


      HUDSON, Justice.


      Defendant Danny Robbie Hembree, Jr. was indicted on 14 December 2009 for

the first-degree murders of Heather Marie Catterton, Randi Dean Saldana, and

Deborah Denise Ratchford. The trial court denied the State’s motion to join the

Catterton and Saldana trials and defendant was first tried capitally for the Catterton
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murder, which is the matter at issue in this appeal. On 8 November 2011, the jury

found defendant guilty of first-degree murder. After a capital sentencing proceeding,

the same jury found two aggravating circumstances, both statutory. The first was

that defendant had previously been convicted of violent felonies; the second was that

Catterton’s death occurred during a “course of conduct” involving violence to others.

Despite finding fourteen mitigating circumstances, the jury recommended, and the

trial court entered, a sentence of death. Defendant now appeals his conviction and

sentence to this Court as a matter of right.

         Defendant contends that the cumulative effect of several errors in the

proceedings below denied him a fair trial. We agree. “Although none of the trial

court’s errors, when considered in isolation, were necessarily sufficiently prejudicial

to require a new trial, the cumulative effect of the errors created sufficient prejudice

to deny defendant a fair trial.” State v. Canady, 355 N.C. 242, 246, 559 S.E.2d 762,

764 (2002). Accordingly, we vacate the conviction and sentence and remand for a new

trial.

                             FACTUAL BACKGROUND

         Defendant spent the latter half of 17 October 2009 drinking alcohol and buying

and smoking crack cocaine with Heather Catterton, Catterton’s friend Sommer

Heffner, and Heffner’s boyfriend Michael Moore. At the time of her death, Heather

Catterton was seventeen years old. Defendant was dating Heather’s older sister,

Nicole. Both Heather and Nicole had sex with men in order to obtain drugs.


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      In the late afternoon, defendant picked up Heffner and Moore outside a shop

on Route 321 in Gastonia, North Carolina. After stopping at defendant’s mother’s

house for approximately half an hour, the three continued to the house where

Catterton lived with her father.

      Eventually, the four left Catterton’s house and drove in defendant’s car to a

store on Route 321. For the first of several times that evening, a dealer walked up to

defendant’s car and sold defendant crack cocaine through the opened car window.

After the initial purchase was made, the group went to the trailer home of one of

defendant’s friends, where they all smoked defendant’s cocaine. Over the next several

hours, the four went from place to place purchasing and using more crack cocaine,

drinking alcohol, having sex, and searching for money for more drugs and alcohol.

      Eventually, with defendant driving, the others left Moore, who was still heavily

intoxicated, at a convenience store. The remaining three in the car—defendant,

Catterton, and Heffner—then drove to a local neighborhood where defendant

purchased yet more crack cocaine. Defendant dropped Heffner off at Moore’s mother’s

house at approximately 1:00 a.m. on 18 October. Catterton stayed with defendant

and was not seen alive again.

      Catterton’s body was found in a culvert in York County, South Carolina several

days later on 29 October 2009, dressed in a sweatshirt and socks, but otherwise nude.

The remainder of her clothing and a crack pipe were recovered nearby two days later.




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      Approximately two weeks later, on 15 November 2009, a second body was

discovered on a dirt road in York County. Two women were riding horses near King’s

Mountain National Military Park when one of them saw a “burn spot” on the side of

the road.   As they investigated, one woman saw what she first believed was a

mannequin, but soon found was a body. Her friend called the police, who later

confirmed via DNA testing that this was the burned body of Randi Dean Saldana.

                        DEFENDANT’S CONFESSIONS

      Late on 4 December 2009, defendant was arrested in Gaston County for a

series of armed robberies. Over the next several hours on 5 December, defendant was

interviewed by officers from both North and South Carolina.          At least twice,

defendant was given Miranda warnings and then stated that he was willing to

answer questions from police. He confirmed repeatedly that he was not under the

influence of drugs or alcohol. While at the police station, defendant was given food,

soda, and coffee, and was allowed to rest.          These interviews were recorded

electronically, transcribed, and later presented to the jury in redacted form.

Defendant also signed a written confession, reviewed that confession with police, and

directed police where to make changes in the text.         During these interviews,

defendant confessed to several crimes, including the murders of Heather Catterton,

Randi Saldana, and Deborah Ratchford.

      Among other accounts, defendant told police that he killed Heather Catterton

in his mother’s laundry room at approximately 4:30 in the morning on 18 October


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2009.    According to these statements, after Heffner was gone, defendant told

Catterton that “her lighter was out,” but that he had more lighters in a cabinet in the

basement, and if “she’d come down there . . . we’d smoke some dope.” He then followed

her, used “some kind of cord” to strangle her from behind, and pulled her to the floor.

Next he covered her mouth and nose with his hands “for like 10 or 15 minutes,” then

put a plastic Walmart bag over her face, and finally stood on her throat with his bare

feet. Defendant told police that when these actions still failed to kill her, he punched

her in the chest and her heart stopped beating.

        Defendant stated that he then stored Catterton’s body in a closet for several

hours, until he disposed of it at approximately 6:00 p.m. that day. At that point, he

wrapped the body in a blanket, drove it across the border to South Carolina, and

dumped it near a creek along Robinson Yelton Road. Defendant said he later disposed

of the blanket by throwing it in a dumpster and discarded the clothing by throwing it

away near a creek. Defendant gave conflicting statements regarding his motive for

the killing. At one point, he told police that he killed Heather Catterton for virtually

no reason, but because he “[j]ust wanted to.” At other times, he told them he killed

her to help her escape a hard life that involved prostitution, beatings, and drugs.

        During these same interviews, defendant also confessed to four other murders,

two of which he said occurred in Florida. As for the other two homicides, defendant

told police that he killed Randi Saldana several weeks after killing Catterton. In




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addition, defendant confessed to the August 1992 murder of Deborah Ratchford.

Evidence about the Ratchford murder was not admitted at the Catterton trial.

      Regarding the two women defendant claimed he killed in Florida, defendant

refused throughout the interviews to provide details, but eventually did provide some

information. Defendant told police that both women were white prostitutes, that he

did not recall their names, and that their bodies were buried on Merritt Island in

Brevard County. However, his statements about these murders conflicted regarding

other important details. At one point, he told police that he committed the murders

in 1992; at another, he said he killed them in 2009.

      Four days later, on 9 December 2009, defendant recanted his confessions to the

Ratchford murder and the two Florida murders. At trial, defendant also denied

intentionally killing Catterton and Saldana.

                            PROCEDURAL HISTORY

      Pretrial Proceedings

       Defendant was indicted on 14 December 2009 for the murders of Heather

Catterton, Randi Saldana, and Deborah Ratchford; he entered pleas of not guilty.

The State moved to join the Catterton and Saldana murders for trial, but the trial

court denied this motion. Thus unable to try the two cases together, the State elected

to try the Catterton murder first and sought to present evidence of the Saldana and

Ratchford murders under Rule of Evidence 404(b).




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      The trial court conducted two hearings, one that started on 6 July 2011, and a

second that started on 8 August 2011, to determine what evidence the State could

present under this Rule. The July hearing focused on the forecast Saldana evidence.

The trial court found several similarities between the Saldana and Catterton

murders, including that both decedents were white females who engaged in

prostitution, that both had died in defendant’s mother’s house within a “matter of

weeks,” that the physical evidence in both cases was consistent to show that both

bodies were temporarily stored in defendant’s mother’s basement closet, and that

defendant had disposed of both bodies in York County, South Carolina. Based on

these factual similarities, the trial court concluded that much of the Saldana evidence

could be presented under Rule 404(b) to show that defendant acted with a common

plan, scheme, or design.1 The trial court also rejected defendant’s objection based on

Rule of Evidence 403, and concluded that the probative value of the Saldana evidence

would not be outweighed by the risks of unfair prejudice, delay, or confusion.

      The August hearing focused on the evidence the State sought to present

regarding the Ratchford murder. The trial court considered the State’s forecast and

found several important differences between the two cases, including the remoteness

in time between the occurrences, the differences in the causes of death, the dissimilar



      1   The trial court specifically allowed the State to introduce several photographs
showing Saldana’s burnt body at the site where defendant had dumped it in South Carolina.
The trial court did, however, exclude others on the basis that they were merely duplicative
of those the State would be allowed to present.

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alleged motives, and the role of a third party in Ratchford’s death but not Catterton’s.

Based on these differences, the trial court concluded that evidence of the Ratchford

murder was inadmissible under both Rule 404(b) and Rule 403.

      Trial

      Opening arguments at the trial for Heather Catterton’s murder were delivered

on 18 October 2011, and on the same day, the State began to present its case-in-chief.

The State’s first witnesses testified about the discovery of Catterton’s body and the

events leading up to her death, and the State focused throughout the trial on the

substance of defendant’s confessions.      By the second day of trial, however, over

defendant’s continuing objection, the State began also to focus heavily on evidence

regarding the death of Randi Saldana.       For example, on the second day of trial, a

witness described finding the burnt body of Randi Saldana and testifying that it “felt

like human flesh.” The day after that, the State called Saldana’s sister to testify

about Saldana’s good character and their close relationship.         In all, the State

presented twelve witnesses who testified about the Saldana death; this presentation

spanned seven of the eight days on which the State presented evidence.

      The State concedes that “[i]t is true that there was more evidence presented

concerning the Saldana murder than there was for the murder of Heather

Catterton—at least in part because there simply existed more evidence about the

Saldana murder.” The State argues that no authority prohibits it from “presenting




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Rule 404(b) evidence just because that evidence is worse for defendant than the

evidence of the offense for which he is being tried.”

      Throughout the trial, the State presented at least sixteen photos of Randi

Saldana, including more than a dozen photographs of Saldana’s charred corpse. The

trial court did, however, give repeated instructions to consider the Saldana evidence

only insofar as it showed a common plan, scheme, or design involving both deaths.

      The State also presented the testimony of medical experts. Anna Schandl,

M.D., testified that she had conducted Catterton’s autopsy, and that Catterton tested

positive for an amount of cocaine which could potentially have been lethal. She also

testified that there was no bruising or external trauma around Catterton’s neck, but

stated that this finding did not necessarily rule out defendant’s account that he had

strangled Catterton with a cord, pulled her to the floor, stood on her neck for several

minutes, and suffocated her with a plastic bag. Ultimately, in her final autopsy

report, Dr. Schandl indicated that the cause of Catterton’s death was “undetermined.”

      In contrast with that of the Catterton experts, the testimony regarding the

cause of Randi Saldana’s death was more certain. The State’s sole rebuttal witness

was Nicholas Batalis, M.D., who conducted the autopsy on Randi Saldana and

described the condition of Saldana’s body in some detail, including multiple bruises

on her neck and a fracture of her thyroid cartilage.        In line with defendant’s

confession, Dr. Batalis concluded that Saldana had been killed by strangulation.




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      The defense evidence focused on discrediting the confessions defendant made

on 5 December 2009 and then recanted. Defendant took the stand in his own defense

to provide a different account of the night Catterton died. According to defendant,

once Sommer Heffner left that evening, he and Catterton continued to smoke crack

cocaine and have sex at his mother’s house. Defendant claimed that they then went

to bed, and Catterton was dead when he woke in the morning. Regarding Randi

Saldana, he testified that he was performing oral sex on Saldana while squeezing her

throat with one hand to intensify her orgasm. He claimed that her death accidentally

resulted from his attempt at erotic asphyxiation.

      Defendant also attempted to explain why he would falsely confess to multiple

offenses, including several murders. Defendant testified that he had been arrested

for a series of armed robberies, and that with his previous record, he could face a

sentence of almost one hundred years. Defendant claimed that he believed confessing

to the other offenses would grant him leverage with prosecutors on the robbery

charges, but that he would not be convicted based on his (allegedly false) confessions

once the police actually investigated his claims. In short, defendant testified that he

falsely confessed in an attempt to “play[ ] the system.”

      The defense also presented evidence to contradict defendant’s earlier claim

that he had killed two women in Florida in either 1992 or 2009 and buried their bodies

on Merritt Island. Detective Hensley testified that he relayed that information to

authorities in Florida, who came to Gastonia to speak with defendant. A Florida


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detective testified, however, that no bodies were ever found at that location, that no

unsolved murders matched the crimes defendant described, and that police were

unable to verify many other details of defendant’s statement.

         Defense evidence also included the testimony of two medical experts regarding

Catterton’s cause of death. Forensic toxicologist Andrew Mason, Ph.D., testified that

he had reviewed Catterton’s toxicology reports and autopsy findings, and that the

concentrations of cocaine and cocaine metabolites in her blood might have been, but

were not necessarily, the cause of her death. In contrast, defense expert Donald

Jason, M.D., a licensed medical doctor and associate professor, was the only expert at

trial who offered a conclusion regarding the most likely cause of Heather Catterton’s

death.     He reviewed the autopsy materials prepared by the State’s expert, Dr.

Schandl, and similarly concluded that Catterton’s body had no significant bruises or

wounds. He noted that Catterton “did not have any trauma that would be consistent

with being cause of death” and concluded “that the most probable cause of death is

cocaine toxicity.”

         Both the State and the defense offered closing arguments on 7 November 2011.

The defense emphasized the lack of certainty regarding the cause of Heather

Catterton’s death and the inconsistencies between the physical evidence and

defendant’s 5 December 2009 statements to police.         The State emphasized the

substance of defendant’s confessions, the fact that forensic evidence did not preclude

defendant’s claim that he had suffocated Catterton with a plastic shopping bag,


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defendant’s history of manipulating others, and that two women, Catterton and

Saldana, had been killed.

      The next day, 8 November 2011, the jury found defendant guilty of first-degree

murder. On 18 November, after a capital sentencing proceeding, the jury found two

aggravating    circumstances     and    fourteen     mitigating   circumstances,    and

recommended a sentence of death, which the court imposed. Defendant appealed to

this Court.

                                       ANALYSIS

      Defendant argues that the trial court committed several errors, the cumulative

effect of which deprived him of a fair trial. We agree. We hold that the trial court

committed three errors: first, by allowing admission of an excessive amount of the

Saldana murder evidence under Evidence Rule 404(b), including more than a dozen

photographs of her burnt body; second, by allowing Saldana’s sister, Shellie Nations,

to testify about Saldana’s good character; and third, by allowing the prosecution to

argue without basis to the jury that defense counsel had in effect suborned perjury.

In light of the cumulative effect of these three errors, “we are unable to conclude that

defendant was not unfairly prejudiced.” State v. Rogers, 355 N.C. 420, 465, 562

S.E.2d 859, 886 (2002) (citation omitted). Accordingly, we vacate the conviction and

sentence, and remand to the trial court for a new trial.

      The Saldana Evidence




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      Defendant argues that the trial court erred by admitting too much evidence of

the Saldana murder, including evidence that showed only differences between the

offenses, in violation of Rules of Evidence 404(b) and 403. Our standard of review for

this issue contemplates a two-part inquiry:

             [W]hen analyzing rulings applying Rules 404(b) and 403,
             we conduct distinct inquiries with different standards of
             review. When the trial court has made findings of fact and
             conclusions of law to support its 404(b) ruling, as it did
             here, we look to whether the evidence supports the findings
             and whether the findings support the conclusions. We
             review de novo the legal conclusion that the evidence is, or
             is not, within the coverage of Rule 404(b). We then review
             the trial court’s Rule 403 determination for abuse of
             discretion.

State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012).

      Rule 404(b) provides in relevant part that

             [e]vidence of other crimes, wrongs, or acts is not admissible
             to prove the character of a person in order to show that he
             acted in conformity therewith. It may, however, be
             admissible 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) (2014). Because this Rule disallows the introduction of

evidence only when the evidence would be used for a specific forbidden purpose, we

have long described Rule 404(b) as a “ ‘general rule of inclusion.’ ”        State v. Al-

Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 122 (2002) (quoting State v. Coffey, 326

N.C. 268, 278, 389 S.E.2d 48, 54 (1990) (emphasis omitted)). In general, Rule 404(b)

allows the admission of any evidence, “ ‘as long as it is relevant to any fact or issue


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other than the defendant’s propensity to commit the crime.’ ” Beckelheimer, 366 N.C.

at 130, 726 S.E.2d at 159 (quoting State v. White, 340 N.C. 264, 284, 457 S.E.2d 841,

852-53, cert. denied, 516 U.S. 994, 116 S. Ct. 530, 133 L. Ed. 2d 436 (1995)). However,

this Rule is “constrained by the requirements of similarity and temporal proximity;”

accordingly, while similarities between the charged crime and the 404(b) crime need

not “rise to the level of the unique and bizarre,” there must be “some unusual facts

present in both crimes that would indicate that the same person committed them.”

Id. at 131, 726 S.E.2d at 159 (citations and internal quotation marks omitted).

      Here, the trial court determined, and repeatedly instructed the jury, that the

evidence of the Saldana murder could be considered only for the limited purpose of

determining whether “there existed in the mind of the defendant a plan, scheme,

system, or design involving the crime charged in this case,” the Catterton murder.

Therefore, under our standard of review, we must examine whether the findings of

fact supported the legal conclusion to admit the evidence for this purpose, and

whether those findings of fact were themselves supported by competent evidence.

      At a two-day hearing conducted in July 2011, the trial court received evidence

and heard arguments regarding the admissibility of the Saldana evidence at trial. In

addition to police reports, the trial court had before it the autopsy reports for

Catterton and Saldana, as well as defendant’s statements to the police. At the end of

the hearing, the trial court made the following findings of fact orally:

             The defendant is charged in this case with the murder of


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Heather Catterton. This offense is alleged to have occurred
on or about October 17th or 18th, 2009. The defendant made
a statement to law enforcement officers on December 5,
2009 and made statements about this matter at various
times and places from that date for several days thereafter.
. . . The defendant’s statements include multiple
statements about the killing of Randi Saldana. The death
of Randi Saldana is placed as having occurred on or about
November 11, 2009, a matter of weeks after the homicide
which is the subject of this case. In his . . . written
statement, the defendant said, “I also killed Randi
Saldana. I killed her because it was business. I was killing
two birds with one stone.”

       The physical evidence accumulated before and after
the statement of the defendant is substantial. The killings
occurred in the residence of the defendant. The physical
evidence is consistent to show that the bodies of each of
these women was temporarily placed in a cabinet or closet
in the house in the basement area of [defendant’s mother’s
house]. . . .

      Both bodies were subsequently removed by the
defendant and taken to South Carolina and disposed of in
remote locations and clothing of the two individuals was
disposed of by being deposited in other remote locations.
Both bodies were found at the same place at which the
evidence tends to show the defendant placed or disposed of
the bodies. The Catterton remains were found on October
29, 2009 in York County. The Saldana remains were found
November 15, 2009 in York County. . . .

      Autopsies were conducted by the Medical University
of South Carolina in each case. In regard to the Catterton
autopsy, the cause of death was undetermined by the
examining physicians and the manner of death was
undetermined as reflected in that report. . . .

      In regard to the Saldana [case], that autopsy which
was performed 11-17-09, results in a finding of [cause of]
death of strangulation, manner of death homicide.


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            Internal and external examination results are part of that
            report. Final diagnosis is strangulation. Fracture of the
            thyroid cartilage is indicated and soft tissue injury to the
            neck. The Saldana body was burned before it was
            discovered.

                   The defendant described his actions in regard to the
            Catterton killing and her actions in the house. As to both
            he describes the drug use and the communal use of drugs
            by the defendant and each of the victims and others before
            the killings.

                   ....

                   As to the victims, they are both white females. They
            both apparently were prostitutes. Each of them was an
            acquaintance of the defendant, not a stranger. Both of
            them were acquaintances with whom he had shared sexual
            relationships and drug use along with others. In regard to
            what is involved, the what is the . . . homicide in both cases.
            ...

                   The proximity in time of these cases is close. It is
            not a temporal extended time, a matter of weeks. Why, in
            regard to motive, there does seem to be a similarity in
            regard to what the defendant says his reasons were and
            that was because of his contention they were having sex
            with black men. . . . .

                   The evidence apart from the autopsies is sufficient
            to show a method employed by the defendant. . . . Both
            would be manual violence as opposed to a blade or a
            firearm or a drowning. Both of them involve a manual
            killing. The similarities in the pattern of events on each
            occasion shows a plan or design.

Based on these findings, the trial court concluded that the evidence was admissible

under Rule 404(b). The trial court emphasized: “I want to be clear about this. The

same similarities and the method of disposing of the bodies and garments all show


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the plan, design and scheme aspect of this rule.”

      We hold that the trial court properly admitted evidence of the Saldana murder

under Rule 404(b).     Competent evidence—particularly the autopsy reports and

defendant’s 5 December 2009 statement to the police—supported the trial court’s oral

findings of fact, and these findings of fact supported the trial court’s conclusion that

the Saldana evidence could be used to show a common plan or design. Because this

evidence was probative of more than defendant’s propensity to commit murder,

namely that the Catterton murder was part of a common plan, design, or course of

conduct, we conclude that Rule 404(b) did not preclude the admission of evidence

concerning the Saldana murder.

      This conclusion, however, is not the end of our inquiry. Though Rule 404(b) is

a “general rule of inclusion,” Al-Bayyinah, 356 N.C. at 154, 567 S.E.2d at 122, Rule

403 supplies an independent limitation on the ability of trial courts to admit evidence

under that Rule. Rule 403 provides in full:

                    Although relevant, evidence may be excluded if its
             probative value is substantially outweighed by the danger
             of unfair prejudice, confusion of the issues, or misleading
             the jury, or by considerations of undue delay, waste of time,
             or needless presentation of cumulative evidence.

N.C.G.S. § 8C-1, Rule 403 (2014). Once a trial court has weighed the likely probative

and prejudicial value of evidence a party has sought to admit over an objection, we

review only for abuse of discretion. Beckelheimer, 366 N.C. at 130, 726 S.E.2d at 159.

This standard is deferential, and we will disturb the trial court’s decision only when


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it crosses the line from potentially reasoned to necessarily arbitrary. See, e.g., State

v. Hyatt, 355 N.C. 642, 662, 566 S.E.2d 61, 74-75 (2002), cert. denied, 537 U.S. 1133,

123 S. Ct. 916, 154 L. Ed. 2d 823 (2003).

       In conducting this analysis, we note the particular dangers presented by Rule

404(b) evidence. The United States Supreme Court long ago described how such

evidence can be misused, especially by allowing the jury to convict the accused for a

crime not actually before it. See Michelson v. United States, 335 U.S. 469, 475-76, 69

S. Ct. 213, 218, 93 L. Ed. 168, 174 (1948) (“The inquiry [into character] is not rejected

because character is irrelevant; on the contrary, it is said to weigh too much with the

jury and to so overpersuade them as to prejudge one with a bad general record and

deny him a fair opportunity to defend against a particular charge.” (footnote

omitted)). Our own, more recent decisions have recognized the same risks. See, e.g.,

State v. Carpenter, 361 N.C. 382, 387-88, 646 S.E.2d 105, 109 (2007) (“When evidence

of a prior crime is introduced, the natural and inevitable tendency for a judge or jury

is to give excessive weight to the vicious record of crime thus exhibited and either to

allow it to bear too strongly on the present charge or to take the proof of it as justifying

a condemnation, irrespective of the accused’s guilt of the present charge.” (citations

and internal quotation marks omitted)). Accordingly, because of this “ ‘dangerous

tendency . . . to mislead and raise a legally spurious presumption of guilt’ ” we have

required that such evidence “ ‘be subjected to strict scrutiny by the courts.’ ” Al-

Bayyinah, 356 N.C. at 154, 567 S.E.2d at 122 (quoting State v. Johnson, 317 N.C. 417,


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430, 347 S.E.2d 7, 15 (1986)). Here, those dangers were particularly acute, and so

our scrutiny in this capital case must be particularly careful.

      Defendant does not argue that he was not present when Heather Catterton

died, nor does he contest that he hid, then later disposed of, her body and that of

Randi Saldana. The principal contested issue of fact at trial was the cause of Heather

Catterton’s death. None of the expert witnesses was able definitively to determine

the cause of her death. None identified any internal or external trauma to Catterton’s

chest or neck; in contrast, three testified that her death may have resulted from

cocaine toxicity. Indeed, one defense expert specifically concluded that Catterton “did

not have any trauma that would be consistent with being [the] cause of death” and

that “the most probable cause of death is cocaine toxicity.” Given this forensic

uncertainty, the Saldana evidence likely weighed heavily in the jury’s deliberations.

      We also note the nature and extent of the evidence presented concerning the

Saldana murder. The State began to present this evidence on only the second day of

the guilt-innocence phase of the trial and continued to present it on seven of the eight

days it offered evidence, up to the day before closing arguments. In addition, because

Saldana’s body had been burned while Catterton’s had not, much of this evidence

concerned a key difference between the two deaths, rather than a similarity as

anticipated under Rule 404(b). One of the State’s first witnesses testified what it felt

like to touch Saldana’s body, and the jury viewed over a dozen photographs depicting




                                          -19-
                                 STATE V. HEMBREE

                                  Opinion of the Court



Saldana’s scorched remains. Our own review of the photographs confirms their stark

and unsettling nature.

      Our review has uncovered no North Carolina case in which it is clear that the

State relied so extensively, both in its case-in-chief and in rebuttal, on Rule 404(b)

evidence about a victim for whose murder the accused was not currently being tried.

To the contrary, we have granted relief when the circumstances reveal a distinct risk

that the jury may have been led to convict based on evidence of an offense not then

before it. In State v. Al-Bayyinah, for example, we awarded a new trial in a capital

case when Rule 404(b) evidence focused on earlier robberies “that were factually

dissimilar to the robbery and murder charged” in that case. 356 N.C. at 155, 567

S.E.2d at 123 (citing State v. Lynch, 334 N.C. 402, 412, 432 S.E.2d 349, 354 (1993)).

But see generally State v. Peterson, 361 N.C. 587, 652 S.E.2d 216 (2007) (allowing a

large amount of 404(b) evidence), cert. denied, 552 U.S. 1271, 128 S. Ct. 1682, 170 L.

Ed. 2d 377 (2008); State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991) (same). We

have also identified cases addressing similar scenarios in other states, and we find

them instructive.

      Most similar is the 2000 decision in Flowers v. State, a capital case from

Mississippi. See generally 773 So. 2d 309 (Miss. 2000). There, the defendant was on

trial for one murder, although he had also been charged with three other homicides

likely committed at the same time. See id. at 313. As here, a motion to consolidate

the cases for trial was denied. Id. And, as here, the State sought to use Rule 404(b)


                                         -20-
                                 STATE V. HEMBREE

                                  Opinion of the Court



to introduce copious evidence of the other three murders, including graphic

photographic evidence, effectively proceeding as if the motion to try the offenses

together had been allowed. See id. at 318-21. Based on this error, and its cumulative

effect when considered with other errors, the Mississippi Supreme Court reversed the

trial court’s judgment and remanded for a new trial. Id. at 317, 334. In doing so, the

appellate court remarked with palpable derision on the State’s tactic of using

evidence of an incendiary separate offense to arouse the passions of the jury:

                    It is the “necessity” by the State to use the other
             evidence of three killings in order to tell a coherent story
             that is the key to its admissibility. The case at bar is not
             one of those cases so interconnected that mention of the
             other three murders is necessary to tell the whole story.
             Certainly it is not to the extent employed by the
             prosecution in the case at bar. Here, however, a pattern of
             trial tactic commenced at the beginning of trial and was
             continued by the prosecutor throughout the guilt phase of
             the proceedings including closing argument.          If the
             evidence relating to the other three murders was relevant
             to any one of the acceptable purposes listed in Miss. R.
             Evid. 404(b), a description of the crime scene may have
             been helpful.       However, the numerous additional
             descriptions of the other victims and photographs could do
             nothing but inflame the jury.

Id. at 324. If anything, the differences between Catterton’s death and Saldana’s

death, and the lack of an obvious connection between the offenses, render the

evidence of Saldana’s death even less “necessary” than the 404(b) evidence in Flowers.

Accordingly, the concerns in Flowers about inflaming the jury pertain here as well.




                                         -21-
                                 STATE V. HEMBREE

                                  Opinion of the Court



       In this context—in which Heather Catterton’s cause of death was uncertain,

and the Rule 404(b) evidence was so emotionally charged—we conclude that the

decision to allow the State to present so much evidence about the Saldana murder

stretched beyond the trial court’s broad discretion.      While the State possesses

considerable leeway in presenting even “gory, gruesome, horrible or revolting”

photographs of homicide victims, State v. Chapman, 359 N.C. 328, 350, 611 S.E.2d

794, 812 (2005) (citations and quotation marks omitted), that leeway ends where the

additional photographs “add nothing in the way of probative value but tend solely to

inflame the jurors,” State v. Roache, 358 N.C. 243, 285, 595 S.E.2d 381, 409 (2004)

(citations and quotation marks omitted). Accordingly, we hold that the trial court

erred in allowing the admission of an excessive amount of evidence about Saldana,

particularly photographic evidence, when the probative value of the sum total of that

evidence was substantially outweighed by the risks that it would confuse the issues

before the jury, or lead the jury to convict defendant based on evidence of a crime not

actually before it.

       Shellie Nations’s Testimony

       The second relevant error concerns the testimony of Randi Saldana’s sister,

Shellie Nations. More specifically, defendant argues that the trial court erred by

allowing Nations to testify, over defendant’s objection, about Randi Saldana’s good

character. Defendant contends that this testimony was inadmissible because it was

irrelevant to the crime charged—the murder of Heather Catterton—and because any


                                         -22-
                                 STATE V. HEMBREE

                                  Opinion of the Court



probative value the testimony might have had was substantially outweighed by the

danger of unfair prejudice. We agree.

      It is axiomatic that only relevant evidence is admissible at trial, while

irrelevant evidence is inadmissible. See, e.g., State v. Berry, 356 N.C. 490, 504, 573

S.E.2d 132, 143 (2002). Rule 401 defines relevant evidence as “evidence having any

tendency to make the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be without the evidence.”

N.C.G.S. § 8C-1, Rule 401 (2014). Evidence of a victim’s character, or of the effect of

the victim’s death on others, is only rarely relevant when making a determination of

guilt. See State v. Maske, 358 N.C. 40, 50, 591 S.E.2d 521, 528 (2004) (“[U]nless

admissible under Rule 404(a)(2). . . . character evidence of a victim is usually

irrelevant during the guilt-innocence portion of a capital trial, as is victim-impact

evidence.” (citing N.C. R. Civ. P. 404(a)(2), State v. Abraham, 338 N.C. 315, 352-53,

451 S.E.2d 131, 151 (1994), and State v. Oliver, 309 N.C. 326, 360, 307 S.E.2d 304,

326 (1983))). It follows a fortiori that evidence concerning the character of a victim

of a separate crime will be relevant in even fewer circumstances. Furthermore, even

when evidence is admissible because it satisfies the low bar of logical relevance, that

evidence must still be excluded when its probative value is substantially outweighed

by the danger of unfair prejudice. N.C.G.S. § 8C-1, Rule 403.     Here,    the    trial

court admitted, over defendant’s objection, Shelly Nations’s testimony about

Saldana’s good character. Nations testified during direct examination as follows:


                                         -23-
                    STATE V. HEMBREE

                     Opinion of the Court



      [by the State] Q. Do you know someone or did you
know someone by the name of Randi Saldana?

       A. Yes, ma’am.

      Q. And what was the relationship that you had with
Miss Saldana?

       A. That was my sister.

       Q. Was she a younger sister or was an older sister?

       A. She was a year younger.

       Q. A year younger? Describe what Randi was like.

      A. She was very free spirit, charismatic. She had a
heart of gold.

       [Defense counsel]: I’m going to object, your Honor.
[The trial court then overruled the objection but offered a
limiting instruction.]

....

      [by the State] Q. Okay. You indicated that she was
charismatic and had a heart of gold.

       A. Yeah. Randi, she was the type of person if you
asked her for something and you needed it, the way we
were raised is you gave it, you know, and you gave it with
good intentions. She never really wanted to hurt anyone
with the intentions of hurting them, you know. She was
the type of person if she knew that—if she had known that
she had hurt your feelings, she would come back and she
would freely apologize and admit to her wrong in that, you
know, for the most part. Randi and I were raised together
our whole lives and I can’t even count on one hand the
arguments my sister and I had. She was just the type of
person, she would express her feelings, and, you know, she
just—she was a good person.


                            -24-
                                  STATE V. HEMBREE

                                   Opinion of the Court




      We hold that the trial court erred by allowing this testimony. It is difficult to

discern any probative value that testimony about Randi Saldana’s good character

could have had to the issue of whether defendant caused the death of Heather

Catterton. See Abraham, 338 N.C. at 352-53, 451 S.E.2d at 151 (“ ‘Character evidence

is of slight probative value and may be very prejudicial. It tends to distract the trier

of fact from the main question of what actually happened on the particular occasion.

It subtly permits the trier of fact to reward the good man and to punish the bad man

because of their respective characters despite what the evidence in the case shows

actually happened.’ ” (quoting N.C. R. Evid. 404 official commentary)). The State

appears to concede this point and argues instead that any error was harmless because

“[t]he bottom line is that there is little likelihood that Nations’ testimony concerning

Saldana’s character made any difference in this case whatsoever.” In light of this

complete lack of relevance, we hold that the trial court should not have allowed this

evidence over defendant’s objection based on Rule 403.

      Improper Statements Made During the State’s Closing Argument

      The third relevant error concerns statements made by the State during closing

arguments at the guilt-innocence phase of the trial. More specifically, defendant

argues that the State made multiple improper statements, including several that

impermissibly accused defense counsel of suborning perjury. We agree.




                                          -25-
                                  STATE V. HEMBREE

                                   Opinion of the Court



       During closing arguments, prosecutors are barred by statute from “becom[ing]

abusive, inject[ing their] personal experiences, [and] express[ing their] personal

belief as to the truth or falsity of the evidence or as to the guilt or innocence of the

defendant.” N.C.G.S. § 15A-1230 (2014). Within those confines, however, we have

long recognized that “ ‘generally, prosecutors are given wide latitude in the scope of

their argument and may argue to the jury the law, the facts in evidence, and all

reasonable inferences drawn therefrom.’ ” State v. Phillips, 365 N.C. 103, 135, 711

S.E.2d 122, 145 (2011) (brackets omitted) (quoting State v. Goss, 361 N.C. 610, 626,

651 S.E.2d 867, 877 (2007), cert. denied, 555 U.S. 835, 129 S. Ct. 59, 172 L. Ed. 2d 58

(2008)) (internal quotation marks omitted), cert. denied, __ U.S. __, 132 S. Ct. 1541,

182 L. Ed. 2d 176 (2012). This latitude is reflected in our deferential standards of

review.   When opposing counsel objects during a closing argument, we review for

abuse of discretion. State v. Walters, 357 N.C. 68, 101, 588 S.E.2d 344, 364, cert.

denied, 540 U.S. 971, 124 S. Ct. 442, 157 L. Ed. 2d 320 (2003). When there is no

objection, we review for gross impropriety. Phillips, 365 N.C. at 143, 711 S.E.2d at

150. In all cases, we view the remarks “in context and in light of the overall factual

circumstances to which they refer.” Id. at 135, 711 S.E.2d at 145 (citations and

quotation marks omitted).

      Judicial deference, however, is not unlimited. In particular, “we have found

grossly improper the practice of flatly calling a witness or opposing counsel a liar

when there has been no evidence to support the allegation.” Rogers, 355 N.C. at 462,


                                          -26-
                                 STATE V. HEMBREE

                                  Opinion of the Court



562 S.E.2d at 885 (citations omitted); see also State v. Locklear, 294 N.C. 210, 217,

241 S.E.2d 65, 70 (1978) (“It is improper for a lawyer to assert his opinion that a

witness is lying. He can argue to the jury that they should not believe a witness, but

he should not call him a liar.” (citations and internal quotation marks omitted)).

Despite this prohibition, several statements made during the course of the State’s

closing argument had just this effect.

      Shortly after beginning its closing argument, the State suggested that

defendant had manipulated his attorneys into misleading the jury. The prosecutor

argued:

             He [defendant] has manipulated his attorneys. Don’t let
             him manipulate you. Don’t let him work the system again.
             . . . [Y]ou heard video confessions of how he killed Heather
             Catterton and Randi Saldana. And then the defense
             started, they started putting up these smoke screens,
             started to try to confuse you.

While this particular statement was borderline, and may have referred to defendant

himself rather than defense counsel, the intimations became more direct as the

argument progressed. Just a few minutes later, the State argued:

             [A]t no point, no point in the last 18 months since this has
             been pending trial, has he ever recanted killing Heather or
             Randi. Never. Not until two years later when he could look
             at everything, when he can study the evidence, when he
             can get legal advi[c]e from his attorneys, does he come up
             with this elaborate tale as to what took place.

Almost immediately, the State emphasized this point a second time:

                   Two years later, after he gives all these confessions


                                         -27-
                                  STATE V. HEMBREE

                                   Opinion of the Court



             to the police and says exactly how he killed Heather and
             Randi Saldana . . . the defense starts. The defendant, along
             with his two attorneys, come together to try and create
             some sort of story.

In response to this third statement, defense counsel objected and the trial court

sustained the objection; however, the trial judge offered no corrective instruction, but

instead told the jury only that he would “sustain the objection as to the argument and

odd comment.” Despite this ruling and judicial admonition, the prosecutor continued

in a similar vein. In conclusion, the prosecutor argued:

                     Think back to December 5th of 2009 when he knew
             nothing, when he had no legal advice; consistently,
             voluntarily told the police everything, and it was consistent
             with what the evidence showed. . . . For hours you watched
             this man confess to killing Heather and Randi Saldana,
             and now, after 18 months to two years, the defense begins
             and they put up smoke screens and they tried to confuse
             you? . . . We’ve got two women dead, and he killed them. I
             ask that you find the defendant guilty, first-degree murder,
             of killing Heather Catterton. Thank you.

      In context, the import of these arguments is clear: The State argued to the

jury, not only that defendant had confessed truly and recanted falsely, but that he

had lied on the stand in cooperation with defense counsel. Whether or not defendant

committed perjury, there was no evidence showing that he had done so at the behest

of his attorneys. Accordingly, we hold that the prosecutor’s statements to this effect

were grossly improper, and the trial court erred by failing to intervene ex mero motu.

                                   CONCLUSION




                                          -28-
                                   STATE V. HEMBREE

                                   Opinion of the Court



        Defendant has identified three errors that occurred during his capital trial for

the murder of Heather Catterton. Regardless of whether any single error would have

been prejudicial in isolation, we conclude that the cumulative effect of these three

errors deprived defendant of a fair trial.        Accordingly, we vacate defendant’s

conviction and sentence, and remand for a new trial. Because of our disposition of

this case, we conclude it is unnecessary to address defendant’s motion for appropriate

relief; we therefore dismiss defendant’s MAR as moot.

        NEW TRIAL.

        Justice ERVIN did not participate in the consideration or decision of this

case.




        Justice NEWBY dissenting.


        At trial the State presented not one, but two, videotaped confessions by

defendant, a third video of defendant at the crime scene explaining the details of the

murder to police, and an abundance of corroborating physical evidence to support the

confessions. In court defendant recanted his prior statements and testified that he

fabricated the murder confessions to avoid longer prison sentences on several robbery

charges. After hearing evidence and weighing the credibility of the witnesses, in less

than four hours of deliberation, the jury found defendant guilty of first-degree



                                          -29-
                                  STATE V. HEMBREE

                                  Newby, J., dissenting



murder. Despite overwhelming evidence of his guilt, the majority unconvincingly

asserts that defendant’s claims of error were prejudicial requiring a new trial even

under the deferential standard of review applicable to each submitted claim.

Accordingly, I respectfully dissent.


      The majority points to three alleged errors at trial: (1) the admission of victim

character testimony from Randi Saldana’s sister, Shelly Nations; (2) the admission of

too much evidence of defendant’s murder of Saldana under North Carolina Rule of

Evidence 404(b), particularly the number of photographs of Saldana’s burned body;

and (3) several comments made by the prosecutor during closing argument. I agree

with the majority that the trial court impermissibly admitted Nations’s testimony;

however, the conflicting evidence of Saldana’s lifestyle of drug use and prostitution

rendered any effect of that testimony negligible. The remaining allegations do not

establish error, much less prejudicial error.


      In this case the pivotal question decided by the jury was the credibility of

defendant’s numerous and detailed incriminatory statements to police against his

conflicting testimony at trial. The State’s evidence included two separate videotaped

interviews with detectives in which defendant confessed to choking to death both

Heather Catterton and Randi Saldana. The State also presented a video of defendant

showing detectives where he disposed of Catterton’s clothing and belongings

following her murder and a video of defendant giving detectives a detailed walk-


                                          -30-
                                   STATE V. HEMBREE

                                   Newby, J., dissenting



through of his mother’s home, where the two murders occurred.              The scientific

evidence was inconclusive. Seeking to undermine his pretrial assertions, defendant

testified at trial that he initially confessed to the two murders in the hope of receiving

leniency on several pending robbery charges.           Defendant further testified that

Catterton died in his mother’s home from a drug overdose and that Saldana died in

the same home from voluntary, sex-related asphyxiation, both within a month of each

other. His initial confessions and his later conflicting trial testimony regarding the

deaths of Catterton and Saldana could not have both been true.


      The majority correctly holds that the trial court properly admitted evidence of

Saldana’s murder under North Carolina Rules of Evidence 404(b) to show defendant

acted with a common scheme, plan, or design. Defendant repeatedly confessed that

he strangled Saldana and suffocated Catterton. Saldana’s autopsy report confirmed

that she was strangled to death, while Catterton’s cause of death remained

inconclusive. In response, the State presented Rule 404(b) evidence of Saldana’s

murder by strangulation to prove that defendant, as he confessed, also intentionally

suffocated Catterton.     Saldana’s murder undoubtedly satisfies the Rule 404(b)

criteria: Defendant confessed to both murders during the same interviews with

police; both victims were young, white female prostitutes who exchanged sex with

defendant for drugs; their circles of acquaintances overlapped significantly; both had

sex with defendant in the same trailer; both died in his mother’s house; both of the

victims’ bodies were temporarily stored in the basement of the home where they died

                                           -31-
                                  STATE V. HEMBREE

                                   Newby, J., dissenting



and later dumped in rural areas of York County, South Carolina; defendant admitted

that he killed both by either strangulation or suffocation; and lastly, both victims died

within a month of each other. See State v. Howell, 343 N.C. 229, 236, 470 S.E.2d 38,

42 (1996) (upholding the admission of 404(b) evidence to prove the defendant’s

identity, common plan, and lack of mistake when both victims were black prostitutes

and both were picked up by the defendant in the same area, taken to the defendant’s

bus at night, and bound, one with wire and the other with duct tape).


      Notwithstanding the conclusion that the evidence was admissible under

404(b), the majority holds that the trial court abused its discretion under North

Carolina Rule of Evidence 403 in admitting “an excessive amount” of the 404(b)

evidence. To justify reversal, a trial court’s ruling on a Rule 403 determination must

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

the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523,

527 (1988) (citation omitted). The majority classifies the trial court’s decision as

necessarily arbitrary, but gives no guidance to the trial court upon retrial on where

to draw the line, how much evidence is too much, or what particular evidence is

prohibited.


      “Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury, or by considerations of undue delay, waste of time, or needless


                                           -32-
                                   STATE V. HEMBREE

                                   Newby, J., dissenting



presentation of cumulative evidence.” N.C. R. Evid. 403. In the context of the Rule

403 balancing test, the prosecution is entitled to put on its case and should not be

penalized because the acts a defendant is accused of committing are particularly

gruesome. The United States Supreme Court has noted:

              When a juror’s duty does seem hard, the evidentiary
              account of what a defendant has thought and done can
              accomplish what no set of abstract statements ever could,
              not just to prove a fact but to establish its human
              significance, and so to implicate the law’s moral
              underpinnings and a juror’s obligation to sit in judgment.
              Thus, the prosecution may fairly seek to place its evidence
              before the jurors, as much to tell a story of guiltiness as to
              support an inference of guilt, to convince the jurors that a
              guilty verdict would be morally reasonable as much as to
              point to the discrete elements of a defendant’s legal fault.

Old Chief v. United States, 519 U.S. 172, 187-88, 117 S. Ct. 644, 653-54, 136 L. Ed.

2d 574, 592 (1997).     This “persuasive power of the concrete and particular” is

especially important in capital cases in which grisly details arise quite frequently.

Id. at 187, 117 S. Ct. at 653, 136 L. Ed. 2d at 592. The more relevant the State’s

evidence is, the more likely it is to persuade the jury of a defendant’s guilt of the

particular crime charged. Rule 403 does not prohibit probative evidence simply

because it strongly influences the jury’s verdict or the State relies on it heavily at

trial.


         The majority ignores the highly probative nature of the Saldana 404(b)

evidence and then fails to identify any unfair prejudice that substantially outweighs

its probative value. Against defendant’s assertions that he contrived the portion of

                                           -33-
                                   STATE V. HEMBREE

                                   Newby, J., dissenting



his videotaped confessions describing how he killed Catterton and Saldana, the

Saldana 404(b) evidence serves to establish that Saldana was in fact strangled. The

physical evidence of Saldana’s murder corroborates defendant’s confession that he

killed her and, considering the striking similarities in the two murders, discredits

defendant’s recantation of his confession to the Catterton murder.            Defendant

entwined details of the two murders throughout his taped confessions, making the

Saldana 404(b) evidence an unavoidable and significant part of the State’s case-in-

chief. Further, many of the State’s witnesses were familiar with both murders and

testified as to their knowledge. Nonetheless, ignoring the interrelationship of the two

murder investigations, the majority believes the highly probative 404(b) evidence is

unfairly prejudicial in part simply because the State referenced it on seven of the

eight days it presented evidence at trial. Without any support from our case law, the

majority creates a vague, unworkable rule that limits admissible evidence under Rule

403 and discourages the State from relying on probative evidence. In so concluding,

the majority fails to adhere to the deferential standard of review for abuse of

discretion.


      Whether photographic evidence “is more probative than prejudicial and what

constitutes an excessive number of photographs in the light of the illustrative value

of each . . . lies within the discretion of the trial court.” Hennis, 323 N.C. at 285, 372

S.E.2d at 527 (citation omitted).       “Photographs of a homicide victim may be

introduced even if they are gory, gruesome, horrible or revolting, so long as they are

                                           -34-
                                  STATE V. HEMBREE

                                   Newby, J., dissenting



used for illustrative purposes and so long as their excessive or repetitious use is not

aimed solely at arousing the passions of the jury.” Id. at 284, 372 S.E.2d at 526

(citations omitted). “When a photograph add[s] nothing to the State’s case, then its

probative value is nil, and nothing remains but its tendency to prejudice.” Id. at 286,

372 S.E.2d at 527 (internal citations and quotation marks omitted). “This Court has

rarely held the use of photographic evidence to be unfairly prejudicial . . . .” State v.

Robinson, 327 N.C. 346, 357, 395 S.E.2d 402, 409 (1990).


      The majority states in conclusory fashion that the trial court erred in admitting

some of the photographs of Saldana’s body because those photographs add nothing of

probative value under Rule 403. A careful analysis of the photographs refutes this

conclusion. Of the fifteen photographs at issue, the first three photographs (Exhibits

45, 46, and 47) depicted Saldana’s burned body lying substantially covered in debris

in a wooded area. Two of those photographs were taken from a distance and from

different angles. The third photograph was a close-up of the body. The witness who

first found the body used these three photographs to show the rural nature of the

area and the body’s appearance upon its discovery. This testimony corroborated

defendant’s videotaped confession regarding his disposal of Saldana’s body.


      The State submitted the next six photographs to illustrate the testimony of a

sheriff’s deputy who responded to the call that a body had been found. Four of those

photographs were of Saldana’s body: Exhibit 50 shows a close-up of the wire found


                                           -35-
                                 STATE V. HEMBREE

                                   Newby, J., dissenting



wrapped around Saldana’s legs, which defendant confessed to using; Exhibits 51 and

52 further show the wire wrapped around Saldana’s legs, and Exhibit 53 shows

Saldana’s burned right arm and hand.              Though unpleasant to view, these

photographs were highly probative in connecting the physical evidence of Saldana’s

body’s condition to defendant’s detailed confession, particularly that he wrapped a

lamp cord around Saldana’s legs.


      The remaining ten photographs in question, used to clarify testimony from the

coroner and Saldana’s sister, showed Saldana’s body after it had been cleaned of

debris and prepared for autopsy on the coroner’s examining table. Before the coroner

testified, the trial court considered, and excluded upon defendant’s objection, two of

these photographs—Exhibits 60 and 61—as unnecessarily cumulative. Exhibits 57,

58, 59, 62, and 63 aided the coroner’s testimony to show the victim’s neck injuries and

corroborated defendant’s videotaped confession that he choked Saldana to death.

Exhibits 58, 59, 62, and 63, though graphic, showed the victim’s head and torso

injuries from different viewpoints. The last photograph focused on the injury to the

victim’s forehead as described by defendant in his videotaped confession and trial

testimony. Three photographs, Exhibits 54, 55, and 56, served to identify the victim

by focusing on unique tattoos located on relatively undamaged parts of her body.

These depictions were not gruesome and did not present a high risk of prejudice.

Saldana’s sister described the tattoos, referring to these three photographs during

her testimony.    These highly probative, standard autopsy photographs, though

                                           -36-
                                  STATE V. HEMBREE

                                  Newby, J., dissenting



unsettling, confirm the victim’s identity and the condition of her body, allowing the

triers of fact to assess the veracity of defendant’s confessions and the similarities in

the victims’ conditions.


      These fifteen photographs of the body helped identify the victim and

corroborated defendant’s pretrial confessions that he strangled, burned, and bound

Saldana, and disposed of the body in a rural, wooded area. This Court defers to a

trial court’s exercise of discretion in allowing such photographs. In State v. Robinson

we upheld the trial court’s admission of twenty-three photographs, eleven of which

showed a victim’s burned body, his autopsy, or the burned car containing the victim.

327 N.C. at 355, 395 S.E.2d at 407. We concluded that the photographs were not

needlessly repetitive, that competent testimony accompanied each photograph, and

that each portrayed “ ‘somewhat different scenes.’ ” Id. at 358, 395 S.E.2d at 409

(quoting State v. Dollar, 292 N.C. 344, 355, 233 S.E.2d 521, 527 (1977)). Compare

State v. Waring, 364 N.C. 443, 497, 701 S.E.2d 615, 649 (2010) (finding no abuse of

discretion when the trial court admitted eighteen autopsy photographs because the

photographs “were not unnecessarily repetitive, were not unduly gruesome or

inflammatory, and illustrated [witness and defendant testimony]”), cert. denied, ___

U.S. ___, 132 S. Ct. 132, 181 L. Ed. 2d 53 (2001), with Hennis, 323 N.C. at 282, 372

S.E.2d at 525 (finding prejudicial error when, inter alia, thirty-five images measuring

three feet, ten inches by five feet, six inches showing three murder victims’

decomposing bodies and repetitive photographs of the same neck injury on all three

                                          -37-
                                 STATE V. HEMBREE

                                  Newby, J., dissenting



bodies were projected on the wall directly above the defendant’s head). Under a

straightforward application of our precedent, the trial court did not abuse its

discretion in admitting the fifteen photographs here, each serving a different

illustrative purpose.


      In its last finding of error, the majority insists the State made inappropriate

statements to the jury in its closing argument. “It is well settled that the arguments

of counsel are left largely to the control and discretion of the trial judge and that

counsel will be granted wide latitude in the argument of hotly contested cases.” State

v. Williams, 317 N.C. 474, 481, 346 S.E.2d 405, 410 (1986) (citations omitted).

“Counsel is permitted to argue the facts which have been presented, as well as

reasonable inferences which can be drawn therefrom.” Id. (citations omitted). We

review for abuse of discretion objections made to a party’s closing argument, State v.

Walters, 357 N.C. 68, 101, 588 S.E.2d 344, 364, cert. denied, 540 U.S. 971, 124 S. Ct.

442, 157 L. Ed. 320 (2003), but “the impropriety of the argument must be gross

indeed” for us to hold that the trial court abused its discretion by not “correcting ex

mero motu an argument which defense counsel apparently did not believe was

prejudicial when he heard it,” State v. Rogers, 355 N.C. 420, 462, 562 S.E.2d 859, 885

(2002) (citation and quotation marks omitted).


      The majority contends that it was grossly improper for the trial court not to

intervene unilaterally when the State, in the majority’s view, accused defense counsel


                                          -38-
                                   STATE V. HEMBREE

                                    Newby, J., dissenting



of   suborning   perjury     and   defendant       of   being   a   liar.   The   majority’s

mischaracterization ignores our deferential standard of review and disregards

defendant’s and defense counsel’s own declarations. While I agree with the majority

that the State strayed too far in its closing argument by saying that “defendant, along

with his two attorneys, c[a]me together to try and create some sort of story,” the trial

court properly sustained defendant’s objection to those remarks. Nowhere does the

State argue that defendant’s attorneys told him to lie in his testimony.


       Defendant’s major premise here was that his trial testimony was true and that

his videotaped confessions were false. In its closing argument, the State submitted

that defendant came up with “this elaborate tale as to what took place” after “get[ting]

legal advi[c]e from his attorneys.” There is nothing grossly improper in the State

suggesting that defense counsel provided legal advice to defendant or that defendant

contemplated recanting his confessions after his attorneys informed him of the legal

consequences of confessing to the murders. Furthermore, defendant himself testified

to being manipulative and untruthful.          On cross-examination, defendant freely

admitted to manipulating the justice system during the over twenty-five years he had

been in and out of prison:

       Q [from the State]. You manipulated the system?

       A. Well, I mean, I choose to call it working the system.
       Manipulation is, you know, in the eye of the beholder. I don’t
       know. I just work the system. I do whatever is best for me. If you
       want to call it manipulation, then that’s fine, I guess.


                                            -39-
                                   STATE V. HEMBREE

                                   Newby, J., dissenting



Defense counsel reinforced defendant’s admission during closing argument:

“[Defendant is] manipulative, he lies, he tells things to get things. . . . His family says

he lies. . . . He lies to bolster himself.” Perhaps the one fact both sides agreed on

throughout the trial was that defendant was not always truthful. The majority

concludes, contrary to precedent, that the trial court erred in allowing the State to

agree with the assertions repeatedly made by defendant and his counsel to this effect.

Williams, 317 N.C. at 481, 346 S.E.2d at 410 (“Counsel is permitted to argue the facts

which have been presented . . . .”).


      The majority has identified three potential errors over the course of a five-week

trial and summarily concludes that these alleged errors when considered together

prejudiced defendant’s trial. The identification of alleged errors, however, is not

reversible per se; defendant must demonstrate that “there is a reasonable possibility

that, had the error[s] in question not been committed, a different result would have

been reached at the trial.” N.C.G.S. § 15A-1443(a) (2013). See State v. Badgett, 361

N.C. 234, 248, 644 S.E.2d 206, 215, cert. denied, 552 U.S. 997, 128 S. Ct. 502, 169 L.

Ed. 2d 351 (2007) (concluding admission of the defendant’s prior conviction was

harmless when the “defendant has failed to demonstrate any reasonable possibility

that the jury would have reached a different result had the evidence been excluded”);

State v. DeLeonardo, 315 N.C. 762, 772, 340 S.E.2d 350, 357 (1986) (“Even assuming

error arguendo, defendant has failed to meet his burden of showing that a reasonable



                                           -40-
                                   STATE V. HEMBREE

                                   Newby, J., dissenting



possibility exists, that had the evidence . . . not been admitted, a different result

would have been reached at his trial.”).


      As stated earlier, I agree the trial court erred by admitting Nations’s victim

character testimony but the conflicting evidence of Saldana’s lifestyle of drug use and

prostitution negated any effect of that testimony. Thus, defendant must show the

two additional alleged errors, the admission of “an excessive amount” of 404(b)

evidence and several comments by the prosecutor during closing argument, created a

“reasonable possibility” of changing the jury’s verdict. Regarding the 404(b) evidence,

the trial court continually instructed the jury, often multiple times a day, that the

evidence

             is offered, and you may consider it, for the purpose of
             showing that there existed in the mind of the defendant a
             plan, scheme, system, or design involving the crime
             charged in this case, and you may not consider it for any
             other purpose in regard to the trial of this case.

The trial court repeatedly and consistently urged the jury to use the evidence only as

instructed throughout the trial:

             [L]et me put it this way: Evidence has been received
             tending to show that Randi Saldana died under
             circumstances that have some similarity to the charge
             against the defendant in the case that we are trying, and
             the case we’re trying is the one which he is charged with
             the murder of Heather Catterton. Now, this evidence was
             received, and will be received and considered by you, solely
             for the purpose of showing that the defendant had existing
             in his mind a plan, scheme, system, or design involving the
             crime charged in this case.


                                           -41-
                                  STATE V. HEMBREE

                                  Newby, J., dissenting



             ....

             I want you to understand that if you believe this evidence,
             you may consider it but only for the limited purpose for
             which it has been received or may be received
             subsequently. You may not consider such evidence about
             the Saldana matter for any other purpose.

             .....

             Now, members of the jury, at this point I’m going to give
             you an instruction that’s just simply the same instruction
             I gave you before. That information previously received
             through the evidence, testimony in regard to Randi
             Saldana, has a limited purpose . . . .

             ....

             This evidence has been received solely for the purpose of
             showing any of the following: That the defendant had a
             motive for the commission of the crime charged in this case;
             that the defendant had the intent which is a necessary
             element of the crime charged in this case; that there existed
             in the mind of the defendant a plan, scheme, system, or
             design involving the crime charged in this case; that the
             defendant had the opportunity to commit the crime in this
             case; or the absence of accident in this case.

             The state contends, and the defendant denies, that the
             evidence on this matter shows these things in regard to the
             offense charged, that is, the murder of Heather Catterton.
             It is for you to decide what, in fact, the evidence does show.
             If you believe this evidence, you may consider it, but only
             for the limited purposes for which it has been received.

Similarly, during closing argument, when defendant objected to the prosecutor’s

statement, the trial court “sustain[ed] the objection as to the argument and the odd

comment.”



                                          -42-
                                  STATE V. HEMBREE

                                  Newby, J., dissenting



      Most importantly, here there is overwhelming evidence of defendant’s guilt,

including the multiple detailed confessions to the murder he provided shortly after

his arrest. An abundance of corroborating physical evidence supported defendant’s

confessions. Defendant’s only defense was that he had fabricated his confessions.

The jury took little time, less than four hours, to reject defendant’s recantation and

find him guilty. Defendant has failed to carry his burden of showing any reasonable

possibility that the jury would have reached a different result absent the alleged

errors.


      The trial court determines the competency of evidence, including witness

testimony, while the jury weighs the credibility of the evidence presented. State v.

Witherspoon, 210 N.C. 647, 649, 188 S.E. 111, 112 (1936) (citation omitted). Here the

jury found credible defendant’s taped confessions, not his trial testimony. Defendant

has failed to show that absent the alleged errors the trial’s outcome would have been

different. This Court should uphold the jury’s determination of defendant’s guilt.

Accordingly, I respectfully dissent.


      Chief Justice MARTIN joins in this dissenting opinion.




                                          -43-
