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State v. Davis12/21/2000
ked about the subject matter and that defendant did not move to strike any of the answers. This Court has held that "when, as here, evidence is admitted over objection, but the same or similar evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost." Hunt, 325 N.C. at 196, 381 S.E.2d at 459. Defendant failed to object to earlier questions and answers related to the food he consumed while in jail; therefore, our review is limited to plain error. Although we strain to see the relevance of what defendant ate while in jail, we conclude that admission of the evidence did not constitute plain error.
In his eighth argument, defendant contends that the trial court committed plain error by admitting evidence related to his future dangerousness, in violation of settled evidence rules and defendant's state and federal constitutional rights. We disagree.
Evidence of future dangerousness is not improper in a sentencing proceeding. State v. Williams, 350 N.C. 1, 28, 510 S.E.2d 626, 644, cert. denied, 528 U.S. 880, 145 L. Ed. 2d 162 (1999). The prosecutor may "urge the jury to recommend death out of concern for the future dangerousness of the defendant." Id.
In the instant case, the State elicited testimony from defense witness Dr. Noble that defendant could be dangerous in the future under certain conditions. The State also elicited testimony that prison inmates make and use homemade knives and that many prison employees are unarmed.
We conclude that the trial court did not err in admitting evidence of defendant's future dangerousness. We note that defendant failed to object to Dr. Noble's testimony that defendant could "clearly be dangerous under certain conditions" in the future. Even assuming arguendo that it was error to admit such evidence, we do not conclude that "absent the error, the jury probably would have reached a different result." State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993). Thus, the admission of the evidence relating to defendant's future dangerousness did not rise to the level of plain error. This assignment of error is rejected.
In his ninth argument, defendant contends that the trial court violated evidence rules and defendant's state and federal constitutional rights by allowing the State to cross-examine witnesses about good character traits of victim Miller. We disagree.
"The trial court exercises broad discretion over the scope of cross-examination . . . ." Locklear, 349 N.C. at 156, 505 S.E.2d at 299. Evidence that the victim is a good person is permissible so long as it does not go "too far." Reeves, 337 N.C. at 723, 448 S.E.2d at 812.
In the instant case, defendant claims that the evidence elicited by the State went too far and was unduly prejudicial. The State elicited testimony on cross-examination that Miller was a "fine woman," gave defendant "a beautiful home," attended his athletic events, provided him with clothing and food, and cared for foster children.
Defendant failed to object to the above evidence of Miller's good character. In any event, we hold that the evidence of Miller's good character elicited by the State on cross-examination did not go too far for purposes of Reeves, nor did it violate defendant's constitutional right to a fundamentally fair sentencing hearing.
In his tenth argument, defendant contends that the trial court erroneously admitted "victim impact" evidence and allowed the prosecutor to present such evidence throughout the capital sentencing proceeding. We disagree.
The Eighth Amendment to the United States Constitution does not bar a prosecutor from arguing "vict
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