Patrick Moody - Chronology of Events

1/25/2006 - Secretary Theodis Beck sets Patrick Moody's execution for March 17, 2006.

1/9/2006 - U.S. Supreme Court denies Moody's petition for a writ of certiorari.

3/9/1997 - NC Supreme Court affirms Moody's conviction and sentence of death.

7/20/1995 - Patrick Lane Moody sentenced to death in Davidson County Superior Court for the murder of Donnie Ray Robbins.

Execution date set for Patrick Moody

Date: January 26, 2006

RALEIGH - Correction Secretary Theodis Beck has set March 17, 2006, as the execution date for inmate Patrick L. Moody. The execution is scheduled for 2 a.m. at Central Prison in Raleigh. Moody, 39, was sentenced to death July 20, 1995, in Davidson County Superior Court for the murder of Donnie Ray Robbins.

Central Prison Warden Marvin Polk will explain the execution procedures during a media tour scheduled for Monday, March 13 at 10:00 a.m. Interested media representatives should arrive at Central Prison’s visitor center promptly at 10:00 a.m. on the tour date. The session will last approximately one hour.

The media tour will be the only opportunity to photograph the execution chamber and deathwatch area before the execution. Journalists who plan to attend the tour should contact the Department of Correction Public Affairs Office at (919) 716-3700.

ATTENTION EDITORS: A photo of Patrick Moody (#0463160) can be obtained by using the "Offender Search" function on the Department of Correction Web site at www.doc.state.nc.us. For more information about the death penalty, including selection of witnesses, click on the “Death Penalty” link.

Witnesses named for Patrick Moody execution

Date:March 15, 2006

RALEIGH - Official witnesses have been named for the execution of Patrick Moody, which is scheduled for March 17 at 2 a.m. at Central Prison in Raleigh.

Official Witnesses
Garry Frank - District Attorney, Davidson County
Danny Mayes - Special Agent, State Bureau of Investigation
Milford Miller - Chief of Police, Graham Police Department
Sgt. Jason Livingston - Detective, Archdale Police Department
Peggy Smith - Victim’s family member
Kathy Ogles - Friend of victim’s family

Media Witnesses
Estes Thompson – Associated Press
Jessica Guenzel – Winston Salem Journal
Ese Isohorio – Lexington Dispatch
Robert Boyer – High Point Enterprise
Hannah Winkler - Thomasville Times

Raleigh News and Observer

"Man put to death for '94 murder; He shot husband of his girlfriend," by Andrea Weigl. (Mar 17, 2006 04:13 AM)

Patrick Moody was executed today for the 1994 murder of his girlfriend's husband in Thomasville.

The victim's sister, Peggy Robbins Smith, planned to watch Moody's death by lethal injection at Raleigh's Central Prison so she could keep a promise to her brother, Donnie Robbins. "I made my brother a promise when I was with him at the casket," said Smith, 47, of Thomasville. "I promised him that I would see justice done. I feel like this will be a way to fulfill my promise."

Smith said she thinks Moody, 39, of Davidson County, deserves to die because he chose to proceed with the plot to kill her brother. Moody conspired with his girlfriend, Wanda Robbins, to kill her husband so the pair could split a $5,000 insurance policy. On Sept. 16, 1994, Moody pretended to be interested in purchasing a car owned by Donnie Robbins and shot him in the back of the head. At 5:30 a.m. on the day after the murder, Wanda Robbins called the life insurance company seeking payment. Wanda Robbins is serving life in prison for her role in the murder.

This was not the first time that Moody had plotted with a woman to kill somebody. He spent five years in a Florida prison for a similar scheme that failed.

Moody spent Wednesday and Thursday visiting with his mother, siblings and other relatives from Canton, Ohio, where he grew up. At 5 p.m. Thursday, Moody took a break from his first contact visits with family in 10 years to eat his last meal: turkey with dressing, a tossed salad with blue cheese dressing, strawberry cheesecake and a Coke.

At 6:15 p.m. Thursday, the U.S. Supreme Court refused to halt the execution so Moody could legally challenge the state's method of lethal injection. A similar lawsuit derailed a California inmate's execution last month, and four other inmates across the country have seen their executions delayed on the same basis. The litigation questions whether the drugs used in lethal injection adequately sedate an inmate before the lethal dose is administered or whether inmates are experiencing excruciatingly painful deaths, which might be unconstitutional. Three hours later, Gov. Mike Easley declined a request to commute Moody's sentence to life in prison. Moody's attorneys say he had very limited mental skills and was manipulated by Wanda Robbins.

Though evidence at trial showed Moody had an IQ of 81, his attorneys say he had scored in the mid-60s on previous tests. That would exempt him from the death penalty under state law. Easley has granted clemency only twice. Moody's sister-in-law, Sandy Moody, thought the governor should have granted clemency because Moody's poor mental skills made him less culpable. "How do you hold a retarded person accountable for this?" she asked.

Raliegh News and Observer

"Moody executed for 1994 shooting death," by Estes Thompson. (Associated Press Mar 17, 2006 05:03 AM)

The state executed a man Friday who confessed to killing the husband of his then-girlfriend in 1994 so they could try to collect a $5,000 life insurance policy. Patrick Moody was pronounced dead at 2:19 a.m. at Central Prison in Raleigh after he was injected with lethal chemicals that paralyzed him and stopped his heart. He was watched by his brother and attorneys, the sister of his victim and members of law enforcement and the news media. Just before the drugs entered his system and stopped his movements, Moody stopped glancing at his friends and family and blew out a long breath.

Moody, 39, was sentenced to death for the Sept. 16, 1994, slaying of Donnie Robbins of Thomasville. Moody was having an affair with Robbins' wife Wanda, who persuaded Moody to shoot her husband and was sentenced to life in prison. "Now the family can go forth," Robbins' sister, Peggy Robbins Smith, said in a written statement.

Gov. Mike Easley denied clemency for Moody Thursday night and both the U.S. Supreme Court and the 4th U.S. Circuit Court of Appeals refused a motion to stop the execution. Moody had argued in court that North Carolina's injection execution method could cause "unconstitutional pain and suffering."

Moody, who released a long poem he received from a prison chaplain as his final statement, chose a last meal of turkey with dressing, tossed salad with blue cheese dressing, strawberry cheesecake and a soda, said Department of Correction spokesman Keith Acree.

Earlier Thursday, Moody visited his mother, brothers and sisters at Central Prison. "He's a little more nervous today than he was yesterday. It's hitting pretty hard today," his brother, Rick Moody of Canton, Ohio, said Thursday. "I hugged him."

Moody interrupted his murder trial in 1995 to plead guilty to the slaying of Robbins. Wanda Robbins was sentenced to life in prison plus 65 years after she pleaded guilty to second-degree murder, conspiracy to commit murder and insurance fraud.

Moody's lawyers said in a clemency argument to the governor that the execution should be stopped because of questions about his mental capacity and because Robbins received a lighter sentence even though she planned the killing. In Florida, Moody tried a similar crime - attempting to kill a man at a woman's urging - and was sentenced to five years in prison.

Before the execution, about 15 people were arrested and charged with trespassing when they tried to enter the prison grounds about 10 p.m., Acree said. Before the execution, about 125 anti-death penalty protesters were arrested when they tried to enter the prison grounds. The protesters were charged with trespassing, Acree said.

Greensboro News and Record

"Clemency hearing held in Thomasville case," by Steve Hartsoe. (Associated Press Mar 7, 2006)

RALEIGH (AP) — A man set to be executed next week should be spared because there are questions about his mental capacity and the lighter sentence given to his girlfriend for the 1994 killing of her husband in Thomasville, defense attorneys told Gov. Mike Easley during a clemency hearing Tuesday.

Attorneys for Patrick Moody, 39, have also filed an appeal in federal court arguing the state uses an inhumane method of lethal injection. The U.S. Supreme Court has refused to consider in a Florida case if the drugs used during injection executions resulted in unconstitutionally cruel punishment, but a California judge has agreed to review that state's death penalty system after no doctor or nurse would administer a fatal dose of barbiturate.

A favorable decision from Easley or the courts could block the execution scheduled for 2 a.m. on March 17 at Central Prison in Raleigh. "We're very concerned about the degree of the punishment," Charlotte Blake, an attorney for Moody, said after the closed-door hearing. "You have a little less confidence in a death sentence when you don't go to trial."

Moody was sent to death row in 1995 after interrupting his murder trial to plead guilty in the Sept. 16, 1994, slaying of Donnie Robbins in Thomasville. Moody had been having an affair for several months with Robbins' wife, Wanda. She persuaded Moody to shoot her husband so they could have proceeds of a $5,000 insurance policy.

Wanda Robbins was sentenced to life plus 65 years after pleading guilty to second-degree murder, conspiracy to commit murder and insurance fraud.

Blake has said that while Moody pulled the trigger, Wanda Robbins devised the scheme to kill her husband and even called the insurance company seeking a payment at 5:30 a.m. the day after her husband was killed. Moody has "very limited skills," Blake said.

Davidson County District Attorney Garry Frank said after Tuesday's hearing that any question about Moody's possible retardation "was fully litigated" and lacks merit. He also said Moody's case was different than that of Wanda Robbins because Moody had a criminal record in Florida, had pulled the trigger to kill Donnie Robbins and sought monetary gain from the crime. "It seems to be a purely solid capital case," said Frank, who didn't prosecute Moody. In Florida, Moody attempted a similar crime — killing a person for a woman — and was sentenced to five years in prison for attempted murder and conspiracy.

Blake argues that Moody was susceptible to manipulation by women because of his marginal intelligence. Evidence at his trial showed he had an IQ of 81, but he had scored in the mid-60s on previous tests, low enough to qualify for exemption from the death penalty, she said. An abusive father once hit him in the face with a shovel, Blake said. She argues that Wanda Robbins used Moody's aversion to physical abuse to lure him into her scheme by telling him her husband hit her. She painted fake bruises on her body and tore her clothes to help persuade him.

Blake also says Moody didn't have decent legal help and waited six months in jail before meeting with a defense lawyer.

Greensboro News and Record

"Lawyers seek stay of execution in Thomasville case." (Mar 15, 2006)

RALEIGH (AP) — An inmate scheduled to be executed Friday for the 1994 slaying of his girlfriend's husband should not die because North Carolina's use of lethal injection could cause "unconstitutional pain and suffering," according to lawyers who said they have appealed the execution to federal court.

Patrick Moody, 39, also has a pending petition for clemency before Gov. Mike Easley.

Moody was sent to death row in 1995 after interrupting his murder trial to plead guilty in the Sept. 16, 1994, slaying of Donnie Robbins in Thomasville. Moody had been having an affair for several months with Robbins' wife, Wanda. She persuaded Moody to shoot her husband so they could have proceeds of a $5,000 insurance policy.

Wanda Robbins was sentenced to life plus 65 years after pleading guilty to second-degree murder, conspiracy to commit murder and insurance fraud.

Winston-Salem Journal

"Friends and estranged family visit Moody before execution; Easley denied request for clemency based on low intelligence," by Jessica Guenzel. (Saturday, March 18, 2006)

Strapped to a gurney and covered with only a sheet, Patrick Moody glanced at his half-brother, attorneys and a friend early yesterday as he took his last breaths. Before a group of 11 witnesses, Moody was put to death by lethal injection at Central Prison in Raleigh at 2 a.m.

His attorneys had argued that North Carolina's method of lethal injection could cause "unconstitutional pain and suffering," but the U.S. Supreme Court and the 4th U.S. Circuit Court of Appeals refused a motion to stop the execution. Gov. Mike Easley denied clemency for Moody Thursday night.

Moody received the death penalty for the 1994 shooting death of his then-girlfriend's husband. Moody, 39, was sentenced to death for the Sept. 16, 1994, killing of Donnie Robbins of Thomasville. Moody had a short affair with Robbins' wife, Wanda Robbins, in the months before the killing. She persuaded Moody to shoot her husband so that they could collect insurance money. She was sentenced to life in prison.

Moody's attorneys had argued that he should be exempted from the death penalty because of his marginal intelligence.

All week, Moody had received visits from family that he had not seen in years. Moody visited briefly Thursday with his mother, Ron Moody, who hadn't seen her son since he was sent to prison. "Every time I talk to him about what happened, he just says, 'Mama, I'm sorry I did this. I should have known better.' I say, 'Honey, we all have a cross to bear, and I'm sorry, but I can't help you anymore,'" Ron Moody said last week.

At his request, Moody's last visitor Thursday was his half-brother, Rick Moody, and a friend, Myles Walburn. "I'm here because Pat asked me to be here," said Walburn, a retired minister who had been visiting Moody for the past two years. "He said to me, 'When the time comes, will you be my chaplain?' I promised him I would be here if he wanted me to be here."

Outside the prison grounds, about 40 death-penalty protesters lit candles and held signs reading "Execution is not the solution" and "Not in my name." Inside the visitors center, in the hours before the execution, Rick Moody talked about his regrets. "My letters to Pat are apologies," Rick Moody said. "I was the oldest. I should have been there for him."

Later, as technicians prepared the execution chamber and the drugs, Rick Moody sat in the small, dark witness room, watching through the double-pane glass window. He mouthed "I'll see you in heaven" and blew two kisses before saying aloud "I'll see you up there" and giving Patrick Moody a thumbs up. Moody could only nod in response.

Just before he received the first of three drugs through an intravenous line, Moody appeared to count backward from five to one twice, took a deep breath and exhaled slowly, then closed his eyes. His chest stopped rising within seconds. He was pronounced dead at 2:19 a.m.

"I now know that my brother can rest in peace, and now there is closure to the loss of my brother, Donnie Robbins," Peggy Smith said in a written statement. "I will always have my memories, and no one can take them away from me. I loved him and always will. Now the family can go forth."

Moody submitted a poem as his final statement. It was handed out after the execution. The last verse reads, "When tragedy strikes, when trouble comes, when life disappoints us, we stand at the crossroads between hope and despair, torn and hurting. Despair cements us in the present; hope sends us dancing around dark corners trusting in a tomorrow we cannot see. Despair says that there is no place to go but here. Hope says that God is waiting for us someplace else. Begin again."

Raleigh News and Observer

"Fifteen arrested while protesting execution." (March 17, 2006)

RALEIGH — Fifteen people were arrested Thursday night while protesting the execution of condemned killer Patrick Moody, who died by lethal injection early Friday morning.

The 15 protesters were arrested while trying to cross the line of officers guarding the entrance to Central Prison, where death row and the execution chamber are located. They were all charged with second-degree trespass and will have April 20 court appearances.

Moody, 39, was sentenced to death for the 1994 shooting of his girlfriend's husband, Donnie Robbins, of Thomasville. Moody and his girlfriend planned to share the proceeds from a $5,000 insurance policy.

WRAL-TV

"N.C. Governor Denies Clemency Request From Condemned Inmate." (AP POSTED: 2:15 am EST March 17, 2006)

RALEIGH, N.C. -- North Carolina's governor denied clemency Thursday for condemned killer Patrick Moody, who was scheduled to be executed early Friday for the 1994 shooting death of his girlfriend's husband. Gov. Mike Easley denied clemency for Moody hours after both the U.S. Supreme Court and the 4th U.S. Circuit Court of Appeals refused a motion to stop the execution. "Given the facts and circumstances of this case, I find no compelling reasons to invalidate the sentence recommended by the jury and affirmed by the courts," Easley said in a statement.

Moody, 39, was scheduled to be executed by injection at 2 a.m. Friday in Central Prison in Raleigh. He had argued to the courts that North Carolina's injection execution method could cause "unconstitutional pain and suffering."

About 15 people were arrested and charged with trespassing when they tried to enter the prison's grounds about 10 p.m., said Keith Acree, spokesman for the state Correction Department.

Moody's federal appeals began with a U.S. District Court judge in Raleigh, who rejected the petition Tuesday.

He chose a last meal of turkey with dressing, tossed salad with blue cheese dressing, strawberry cheesecake and a soda, Acree said. Earlier, he visited his mother, brothers and sisters at Central Prison. "He's a little more nervous today than he was yesterday. It's hitting pretty hard today," said his brother, Rick Moody of Canton, Ohio. "I hugged him."

It was the first visit for the condemned man during which he could touch relatives. The visitation sessions ran all day with meal breaks and were held in a small room in the presence of two corrections officers. Prior visits were made with the parties separated by bars and reinforced glass. Conversations were held through a rectangle of wire mesh. Rick Moody said he took a picture of his brother. "It made it more personal and easier to talk," the brother said.

Challenges to lethal injection have had varied success around the nation. In a Florida case, the U.S. Supreme Court refused to consider whether drugs used in the process were cruel punishment, which is prohibited by the Constitution. A California judge agreed to review the state's capital punishment system after doctors and nurses refused to administer a fatal dose of barbiturate.

In North Carolina, "appropriately trained personnel" administer fatal drug doses, according to the Department of Correction. Two intravenous lines _ one in each arm _ are fed with two sets of syringes of chemicals by executioners whose view of the condemned is blocked from view by a curtain.

The first syringes are filled with at least 3000 milligrams of sodium pentothal to put him to sleep. Another set of syringes flushes the lines with saline and a third set contains at least 40 milligrams of Pavulon, or pancuronium bromide, which paralyzes the inmate. A fourth set of syringes with at least 160 millequivalents of potassium chloride stops the heart.

The inmate's father, Richard Moody, of Canton, Ohio, visited last week and in an interview denied defense contentions that he abused his son. The father said he supports capital punishment, but believes his son belongs in a mental institution. Richard Moody, 70, said his son was a disciplinary problem, something that a former special education teacher indicated in an affidavit.

Patrick Moody interrupted his murder trial in 1995 to plead guilty to the Sept. 16, 1994, slaying of Donnie Robbins in Thomasville. Moody was having an affair with Robbins' wife Wanda, who persuaded Moody to shoot her husband so they could collect a $5,000 insurance policy.

Wanda Robbins was sentenced to life in prison plus 65 years after she pleaded guilty to second-degree murder, conspiracy to commit murder and insurance fraud.

Moody's lawyers said in a clemency argument to the governor that the execution should be stopped because of questions about his mental capacity and because Robbins received a lighter sentence even though she planned the killing.

In Florida, Moody tried a similar crime _ attempting to kill a man at a woman's urging _ and was sentenced to five years in prison.

ProDeathPenalty.Com

Patrick Lane Moody was arrested for the September 16, 1994 first-degree murder of Donnie Ray Robbins. In July 1994, Moody started having an affair with Wanda Robbins, the wife of the victim, Donnie Robbins. Over the course of their affair, Moody and Wanda discussed various plans to murder Wanda's husband and share the insurance proceeds.

On September 16, 1994, Moody went to the home of Donnie and Wanda Robbins. Moody identified himself as "Darryl Thompson" and pretended to be interested in buying Donnie's old Chevrolet automobile. He and Donnie went to a nearby field where the automobile was located. Moody asked Donnie to measure the automobile, purportedly to determine whether it would fit on a "roll-back" truck. As Donnie leaned over the hood of the automobile to measure it, Moody shot him in the back of the head with a .32-caliber semiautomatic pistol he had stolen the previous day from a house near the Robbins home.

Moody and Wanda had agreed to meet at the hospital following the murder. While at the hospital, Moody identified himself as Darryl Thompson to investigating officers and consented to taking a gunshot residue test. Moody then left the hospital. Early the next morning, Moody was apprehended and taken into custody. Later that morning, following Moody's directions, the police found the murder weapon, the black jacket Moody had been wearing, and other items of evidence. After being arrested, Moody waived his Miranda rights and made a statement.

At trial, after the State had begun its case and had presented evidence from seven witnesses, Moody withdrew his plea of not guilty and entered a plea of guilty to murder in the first degree. The trial court accepted the plea. The State began the presentation of its capital sentencing proceeding evidence following the announcement of the defendant's change of plea to the jury.

Two residents and the owner of the trailer park where Donnie Robbins lived testified that Donnie and Wanda argued often and that on at least two occasions these residents had identified mercury in the beer that Donnie was drinking. A life insurance agent also testified that Wanda Robbins had called her at 5:30 a.m. the morning after the murder to complete the paperwork necessary for Wanda's claim for the insurance benefits payable upon Donnie's death. At the conclusion of the State's evidence, Moody's prior convictions in Florida for attempted first-degree murder and conspiracy to commit first-degree murder were introduced.

Moody's evidence at the capital sentencing proceeding was that he was involved with a religious group called "His Laboring Few Bikers' Ministry," which focused on the spiritual needs of bikers at biker rallies. Two members of the ministry took Moody into their home after meeting Moody in Florida and sending him a bus ticket to come to High Point to live with them. An ordained minister with the ministry testified that Moody had become involved with the ministry but later had become distant upon meeting Wanda Robbins. Moody's half-brother and mother testified as to Moody's traumatic and abusive childhood.

A psychologist diagnosed Moody as suffering from an attention deficit hyperactivity disorder, alcohol dependence, a mixed personality disorder, child abuse syndrome, and psychologically caused physical problems. Moody testified as the last witness in the sentencing phase of the trial. He affirmed that he shot and killed the victim but denied that he did so in order to get insurance money. On cross-examination, Moody testified that he killed the victim because Wanda threatened to notify the police about his outstanding warrants in Florida.

The jury recommended a sentence of death. The jury found as aggravating circumstances that defendant had been previously convicted of a felony involving the use of violence and that the murder was committed for pecuniary gain. The jury also found six of the twenty-one statutory and non-statutory mitigating circumstances submitted to it. On July 20, 1995, the trial judge, in accordance with the jury recommendation, imposed a sentence of death for the first-degree murder conviction.

National Coalition to Abolish the Death Penalty

Patrick Moody, NC – March 17

Do Not Execute Patrick Moody!

Patrick Moody, a 39-year-old white man, faces execution on March 17 for the murder of Donnie Robbins. Moody and Robbins’ wife, Wanda, had been involved in a romantic relationship. Wanda and Moody allegedly formulated a plan to kill Patrick for the insurance money. On the premise of being interested in Donnie’s automobile, Moody and Donnie drove to a remote field in Davidson County where Moody shot Donnie with a stolen handgun.

Despite entering a plea of not guilty at the beginning of the trial, Moody later withdrew that plea and entered a second plea of guilty. Clearly, Moody does not claim to be innocent of Donnie Robbins’ murder. However, there are several reasons why he ought not to be executed. First and foremost is one of the aggravating circumstances that made Moody eligible for the death penalty under North Carolina law, specifically, that he had committed the murder for “pecuniary gain.” That is to say, Moody committed the murder allegedly for the insurance money that Wanda had promised to share with him. Moody contends that he was not concerned with the money. Instead, he says that he committed the murder under coercion of Wanda, who threatened to alert Florida authorities (who had outstanding warrants for Moody) to his location. What’s more, Moody states that he had believed that Donnie had been physically abusing Wanda, and that that belief played a major role in Moody’s killing Donnie. One or more of the jurors in Moody’s case found merit in these arguments, indicating a belief that “Moody was deceived by… Wanda Robbins… to believe that she… was being physically abused by Donnie Ray Robbins” and that “the defendant acted under the domination of another person.”

Ironically, even though Moody likely was acting under the domination of Wanda Robbins, and even though Wanda Robbins was at least as financially invested in Donnie’s death as Moody, and even though Wanda had attempted to poison Donnie in the past, Wanda only received life imprisonment for her role in Donnie’s murder. This inconsistency in sentencing when a lives are at stake is troubling.

There is little debate whether Patrick Moody killed Donnie Robbins. He admits this, taking full responsibility for his actions. However, Moody does not fit into the category of “the worst of the worst offenders,” for whom death penalty proponents argue the punishment is reserved. To execute Patrick Moody would be a miscarriage of justice.

Please write Gov. Easley requesting that he stop the execution of Patrick Moody!

Amnesty International: Give Moody clemency. (Winston-Salem Journal March 15, 2006)

A national human-rights organization is asking the public to send appeals for clemency to Gov. Michael Easley on behalf of a man scheduled to be executed by lethal injection Friday. "We are opposed to the death penalty in all cases, and we work on every single execution in some way or another in the United States," said Sue Gunawardena-Vaughn, the director of Amnesty International USA's program to abolish the death penalty. "In Patrick Moody's case, we've issued a call for urgent action because Mr. Moody's case is particularly horrendous."

Moody, 39, was sentenced to death in 1995 after being convicted of killing his lover's husband, Donnie Robbins, on Sept. 16, 1994. His execution is scheduled for 2 a.m. at Central Prison.

Moody had been having an affair for several months with Robbins' wife, Wanda, who planned the killing so that she could collect life insurance. Testimony during the trial revealed that Robbins persuaded Moody to kill her husband by making up stories of spousal abuse - even faking bruises with makeup - and threatening to end the affair if Moody didn't carry out the killing.

Moody's attorneys say that he was susceptible to manipulation by women because of his marginal intelligence and his abusive childhood. Evidence at his trial showed that he had an IQ of 81 and had scored as low as in the mid-60s on previous tests - low enough to qualify for exemption from the death penalty.

Amnesty International "is also seriously concerned about the quality of Moody's legal representation at the trial stage," according to a statement issued yesterday by the organization. "Moody's current attorneys allege that his trial counsel failed to properly investigate mitigating evidence such as his history of severe psychological problems and sustained child abuse."

Wanda Robbins was allowed to plead guilty to second-degree murder, conspiracy to commit murder and insurance fraud. She was sentenced to life plus 65 years in prison. Gunawardena-Vaughn said that Amnesty International sees many cases where someone convicted of killing another gets sentenced to death, while someone else who committed the same crime in another county or state gets life in prison. "It's a lottery of death, really," she said. "It's a lottery of counsel, of issues, of jurors, of geography."

Moody's last hope lies in Easley granting clemency and commuting his sentence to life in prison, a move that Easley has made only twice in the past. Local death-penalty-abolition activists have several activities planned for Thursday, including a prayer service at 7:30 p.m. at Pullen Memorial Baptist Church in Raleigh and a nighttime vigil outside the prison until the time of Moody's execution.

People of Faith against the Death Penalty

"Patrick Moody Scheduled for Execution March 17." (Updated March 7, 2006)

Poorly defended by his court-appointed lawyers who failed to fully investigate his case, Patrick Lane Moody was sentenced to death for the 1994 murder of Donnie Robbins in Davidson County. Robbins’ wife, Wanda, masterminded the crime and recruited Moody to kill her husband. She received a life sentence. Moody is scheduled to be executed on March 17. Excessive and unfair, Moody’s death sentence should be commuted to life in prison.

Moody was duped into committing the murder.
Wanda Robbins, Donnie Robbins’ wife and Moody’s co-defendant, tried and failed to recruit others to kill her husband. She told Moody that Donnie abused her and went so far as to paint fake bruises on herself. Moody had been horribly abused as a child and killed Donnie to protect Wanda.

Moody’s death sentence is excessive and unfair in light of Wanda’s life sentence. Wanda Robbins wanted Donnie dead so she could collect on his life insurance policy. Despite having planned the murder and having deceived Moody into committing it, the State allowed Robbins to plead to second degree murder. She was sentenced to life and could be released from prison.

Moody’s childhood was filled with neglect and physical abuse.
Moody was beaten severely by his father, including being hit with a shovel on the head. Moody’s father and step-mother forced him to bathe last after the other children in dirty, used bath water. They would not allow him to eat with the rest of them, making him sit in a corner. Moody was never clothed properly while his step-siblings were, and he was teased at school. He was ostracized by his peers and had few friends. When his father and step-mother went on vacation with his step-siblings, he was not allowed to go with them.

Moody is borderline mentally retarded.
Moody was in special education his entire school career and repeated both kindergarten and first grade. He has the problem-solving skills of a 3rd or 4th grader. Because Moody was slow, anxious, and dressed poorly, he was constantly picked on in school. His father belittled him and called him stupid. Moody’s low IQ and deprived background made him especially vulnerable to manipulation by Wanda Robbins.

Moody’s attorneys failed to prepare for trial and their inadequate representation led to his death sentence.
Moody’s lawyers met with him only four times before the start of his capital murder trial. Moody took responsibility for what he did, giving the police a confession the day after the shooting, but no attorney met with him until over six months later. He wrote letters to his attorneys begging them to visit him and work with him to save his life. In May of 1995 he wrote: “How I wish to see you both up here. Befor the end of May. So we can start working on my case together. So I no what is going on. This is my life. I am trying to save. So, let’s work together.” It was over a month before his other attorney met with him for the first time, less than one month before the start of his trial. The trial attorneys’ lack of preparation resulted in an inconsistent and incoherent presentation of what was clearly a compelling case for life.

Stop Scheduled Executions

Contact Gov. Mike Easley at:
Governor's Office, 20301 Mail Services Center,
Raleigh, NC 27699-0301
Email: governor.office@ncmail.net or through www.governor.state.nc.us
Fax: (919) 733-2120 or 715-3175
Tel: 1-800-662-7952 (North Carolina only) or (919) 733-5811

Pray.
Remember victims of murder and their families and those on death row in your and your congregation's prayers.

Urge your congregation and your minister to get involved.
Meet with your congregation's pastor, rabbi or leader. Ask him or her to preach against the death penalty, even if you are sure he or she would not want to do so. Write an article for the bulletin and announce the protests against the death penalty. Announce the actions (listed below) people can take. Ask your minister or rabbi to write a letter to Gov. Easley. Urge your congregation to pass a resolution for a moratorium on executions.

Write letters to the editor.
Letters should be brief (fewer than 250 words) and include your name, address, and telephone number. Editors prefer e-mail letters if you have that option. Please let us know if any of this contact information has changed. You can find out more about pending executions at www.pfadp.org .

Write or call your state representative and senator and urge them to ask the governor for clemency. Odds are great that he or she will not even know the execution is scheduled, much less any of the facts about the case. To find out who represents you, click here

Get others involved. Announce scheduled executions and the protests against them in your congregation's bulletin. Pass this alert along to anyone you know who would be willing to help.

Organize a protest, prayer vigil, or service. If you would like to organize a protest, an interfaith vigil or prayer service in your community before a scheduled execution, PFADP can assist you with liturgies and publicity. Contact info@pfadp.org or (919) 933-7567.

State v. Moody, 345 N.C. 563, 481 S.E.2d 629 (N.C. 1997) (Direct Appeal).

Defendant pleaded guilty to first-degree murder in the Superior Court, Davidson County, Greeson, J., and was sentenced to death. He appealed sentence. The Supreme Court, Frye, J., held that: (1) letters written by murder victim to his wife were admissible; (2) defendant's statement, which contained references to his sexual relationship with victim's wife, was admissible; (3) trial court properly instructed jury regarding mitigating factor that defendant acted under duress or domination of another person; (4) trial court adequately corrected erroneous instruction in form given to jury; (5) defendant was not entitled to have each juror record his or her vote on each aggravating or mitigating circumstance; (6) defendant's statements to law enforcement officials were admissible; (7) defendant was not entitled to individual voir dire; (8) trial court did not err by implying that jury had to be unanimous in order to return life verdict; and (9) sentence of death was not disproportionate. No error.

FRYE, Justice.
Defendant, Patrick Lane Moody, was indicted on 9 January 1995 for the 16 September 1994 first-degree murder of Donnie Ray Robbins. On 14 July 1995, during the State's presentation of evidence, defendant changed his plea to guilty of first-degree murder. Following the entry and acceptance of the guilty plea, the trial court held a capital sentencing proceeding pursuant to N.C.G.S. § 15A-2000, and the jury recommended a sentence of death. The jury found as aggravating circumstances that defendant had been previously convicted of a felony involving the use of violence and that the murder was committed for pecuniary gain. The jury also found six of the twenty-one statutory and nonstatutory mitigating circumstances submitted to it. On 20 July 1995, the trial judge, in accordance with the jury recommendation, imposed a sentence of death for the first-degree murder conviction.

Defendant makes thirteen arguments on appeal to this Court. We reject each of these arguments and conclude that defendant's capital sentencing proceeding was free of prejudicial error and that the death sentence is not disproportionate.

The State's evidence in the guilt and sentencing phases tended to show the following facts and circumstances. In July 1994, defendant started having an affair with Wanda Robbins (Wanda), the wife of the victim, Donnie Robbins (Donnie). Over the course of their affair, defendant and Wanda discussed various plans to murder Wanda's husband and share the insurance proceeds. On 16 September 1994, defendant went to Loman's Trailer Park in Thomasville, North Carolina, to the home of Donnie and Wanda Robbins. Defendant identified himself as Darryl Thompson and pretended to be interested in buying Donnie's old Chevrolet automobile. He and Donnie went to a field near the trailer park where the automobile was located. Defendant asked Donnie to measure the automobile, purportedly to determine whether it would fit on a "roll-back" truck. As Donnie leaned over the hood of the automobile to measure it, defendant shot him in the back of the head with a .32-caliber semiautomatic pistol he had stolen the previous day from a house near the trailer park.

Defendant and Wanda had agreed to meet at the hospital following the murder. While at the hospital, defendant identified himself as Darryl Thompson to investigating officers and consented to taking a gunshot residue test. Defendant then left the hospital. Early the next morning, defendant was apprehended and taken into custody. Later that morning, following defendant's directions, the police found the murder weapon, the black jacket defendant had been wearing, and other items of evidence. After being arrested, defendant waived his Miranda rights and made a statement.

At trial, after the State had begun its case-in-chief and had presented evidence from seven witnesses, defendant withdrew his plea of not guilty and entered a plea of guilty to murder in the first degree. The court found that there was a factual basis for the plea, defendant was competent to stand trial, defendant was satisfied with his attorney, and the plea was made freely and voluntarily. The trial court then accepted the plea.

The State began the presentation of its capital sentencing proceeding evidence following the announcement of defendant's change of plea to the jury. Two residents and the owner of the trailer park testified that Donnie and Wanda argued often and that on at least two occasions these residents had identified mercury in the beer that Donnie was drinking. A life insurance agent also testified that Wanda Robbins had called her at 5:30 a.m. the morning after the murder to complete the paperwork necessary for Wanda's claim for the insurance benefits payable upon Donnie's death. In addition, SBI Special Agent Timothy Thayer testified that he interviewed defendant on 21 September 1994, and Agent Thayer read the transcription of his notes from that interview which described defendant's life during the summer before the murder. At the conclusion of the State's evidence, defendant's prior convictions in Florida for attempted first-degree murder and conspiracy to commit first-degree murder were introduced.

Defendant's evidence at the capital sentencing proceeding tended to show the following facts and circumstances. Defendant was involved with a religious group called "His Laboring Few Bikers' Ministry," which focused on the spiritual needs of bikers at biker rallies. Two members of the ministry took defendant into their home after meeting defendant in Florida and sending him a bus ticket to come to High Point to live with them. Steve Ervin, an ordained minister with the ministry, testified that defendant had become involved with the ministry but later had become distant upon meeting Wanda Robbins.

Defendant's half-brother and mother testified as to defendant's traumatic and abusive childhood. Dr. Jerry Noble, a psychologist, diagnosed defendant as suffering from an attention deficit hyperactivity disorder, alcohol dependence, a mixed personality disorder, child abuse syndrome, and psychologically caused physical problems. Dr. Noble testified that defendant had borderline intellectual functioning with a full scale IQ of 81.

Defendant testified as the last witness in the sentencing phase of the trial. He affirmed that he shot and killed the victim but denied that he did so in order to get insurance money. On cross-examination, defendant testified that he killed the victim because Wanda threatened to notify the police about his outstanding warrants in Florida.

In his first argument, defendant contends that the trial court erred by failing to suppress a series of inflammatory and irrelevant letters that were published to the jury during the capital sentencing proceeding. Defendant first contends that the trial court erred in overruling his objection to the introduction of the letters on the basis that any probative value of the letters would be substantially outweighed by the danger of unfair prejudice. In addition, defendant argues that the letters were not properly admitted because they are hearsay and were not properly authenticated. Finally, defendant argues that the letters were improperly admitted as victim-impact evidence.

During the capital sentencing proceeding, the State moved to introduce a series of exhibits into evidence, one of which was three letters written by the victim to his wife, who was not living in their home at the time. The letters express the victim's love for his wife and his pain and anguish that she had left him. Defendant objected, arguing that the letters should be excluded under Rule 403 of the North Carolina Rules of Evidence. The trial court overruled his objection, and defendant challenges this ruling as error.

PROPORTIONALITY REVIEW
We turn now to the duties reserved exclusively for this Court in capital cases. It is our duty in this regard to ascertain: (1) whether the record supports the jury's findings of the aggravating circumstances on which the sentence of death was based; (2) whether the death sentence was entered under the influence of passion, prejudice, or other arbitrary consideration; and (3) whether the death sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and defendant. N.C.G.S. § 15A-2000(d)(2).

In the instant case, defendant pleaded guilty to first-degree murder. During defendant's capital sentencing proceeding, the jury found the two aggravating circumstances that were submitted: that defendant had been previously convicted of a violent felony, N.C.G.S. § 15A-2000(e)(3), and that the murder was committed for pecuniary gain, N.C.G.S. § 15A-2000(e)(6). Of the four statutory mitigating circumstances submitted, including the catchall, the jury found only one: that the murder was committed while defendant was mentally or emotionally disturbed, N.C.G.S. § 15A-2000(f)(2). The jury also found five of the seventeen nonstatutory mitigating circumstances submitted. After thoroughly examining the record, transcripts, and briefs in the present case, we conclude that the record fully supports the finding of the two aggravating circumstances found by the jury. Further, we find no indication that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary consideration. We must turn then to our final statutory duty of proportionality review.

In our proportionality review, it is proper to compare the present case to cases in which this Court has concluded that the death penalty was disproportionate. State v. McCollum, 334 N.C. 208, 240, 433 S.E.2d 144, 162 (1993), cert. denied, 512 U.S. 1254, 114 S.Ct. 2784, 129 L.Ed.2d 895 (1994). We have found the death penalty disproportionate in seven cases. State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988); State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987); State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986), overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988); State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985); State v. Hill, 311 N.C. 465, 319 S.E.2d 163 (1984); State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983); State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983). We conclude that this case is not substantially similar to any case in which this Court has found the death penalty disproportionate. In support of his argument that his death sentence is disproportionate, defendant submits that Wanda Robbins was equally culpable, and the fact that she did not receive a death sentence demonstrates the disproportionality of his death sentence. We disagree.

We have held that it is not error to refuse to admit evidence that a co-partnership received a life sentence and to refuse to submit this proposed mitigating circumstance to the jury. State v. Williams, 305 N.C. 656, 687, 292 S.E.2d 243, 261-62, cert. denied, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982); see also State v. Irwin, 304 N.C. 93, 104, 282 S.E.2d 439, 447 (1981) (evidence of plea bargain and sentencing agreement between the State and a codefendant was irrelevant and properly excluded from the jury's consideration as a mitigating circumstance because such evidence had no bearing on defendant's character, record, or the nature of his participation in the offense). While these cases address what evidence is proper for the jury to consider, we also conclude that the different disposition of defendant's co-partnership's case does not itself render defendant's death sentence disproportionate.

In addition, we do not find any merit in defendant's assertion that State v. Vanhoy, 343 N.C. 476, 471 S.E.2d 404 (1996), dictates a different result. Defendant contends that Vanhoy demonstrates how cases in which someone is solicited to commit murder are treated differently in different prosecutorial districts and that therefore his death sentence violates Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). "This Court has consistently recognized that a system of capital punishment is not rendered unconstitutional simply because the prosecutor is granted broad discretion." State v. Garner, 340 N.C. 573, 588, 459 S.E.2d 718, 725 (1995), cert. denied, 516 U.S. 1129, 116 S.Ct. 948, 133 L.Ed.2d 872 (1996). Moreover, "the only limitation on this discretion pertinent to this case is that the decision to prosecute capitally may not be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Id. There is nothing in the record in the instant case to show that the decision to prosecute defendant, and not the co-partnership, capitally was based on such an unjustifiable standard. In conducting our review, it is also proper to compare this case to those where the death sentence was found not disproportionate. McCollum, 334 N.C. at 244, 433 S.E.2d at 164. In State v. Rose, 335 N.C. 301, 439 S.E.2d 518, cert. denied, 512 U.S. 1246, 114 S.Ct. 2770, 129 L.Ed.2d 883 (1994), we said, "[o]f the cases in which this Court has found the death penalty disproportionate, none have involved the N.C.G.S. § 15A-2000(e)(3) aggravating circumstance of a prior conviction of a felony involving the threat or use of violence against the person." Id. at 351, 439 S.E.2d at 546. This aggravating circumstance was found in the instant case.

The aggravating circumstances found in this case have been present in other cases where this Court has found the sentence of death proportionate. See, e.g., State v. Chandler, 342 N.C. 742, 467 S.E.2d 636 (affirming a death sentence based on the (e)(6) aggravator alone), cert. denied, 519 U.S. 875, 117 S.Ct. 196, 136 L.Ed.2d 133 (1996); State v. Jones, 342 N.C. 457, 466 S.E.2d 696 (affirming a death sentence based on both the (e)(3) and (e)(6) aggravators), cert. denied, 518 U.S. 1010, 116 S.Ct. 2535, 135 L.Ed.2d 1058 (1996); Carter, 342 N.C. 312, 464 S.E.2d 272 (affirming a death sentence based on both the (e)(3) and (e)(6) aggravators).

In this case, defendant conspired with the victim's wife over a period of several weeks to kill the victim. Defendant lured the victim out to a field on the pretense of being interested in purchasing the victim's automobile and then shot the victim in the back of the head. Defendant had been previously convicted of an attempted murder, and by killing the victim in the instant case, defendant stood to gain a portion of the insurance proceeds as a result of his relationship with the victim's wife.

After comparing this case to other roughly similar cases as to the crime and the defendant, we conclude that this case has the characteristics of first-degree murders for which we have previously upheld the death penalty as not disproportionate. Accordingly, we conclude that defendant received a capital sentencing proceeding free of prejudicial error and that the sentence of death is not disproportionate. NO ERROR.

Moody v. Polk, 408 F.3d 141 (4th Cir N.C. 2005) (Habeas)

Background: Following affirmance of his conviction of capital murder, 345 N.C. 563, 481 S.E.2d 629, and denial of postconviction relief, petitioner sought writ of habeas corpus. The United States District Court for the Middle District of North Carolina, Frank W. Bullock, Jr., J., denied petition, and petitioner appealed.

Holdings: The Court of Appeals, Luttig, Circuit Judge, held that:
(1) error in state court's analysis of prejudice prong of Strickland test that was not necessary to resolution of claim did not render decision contrary to Supreme Court precedent;
(2) determination that counsel did not perform deficiently in investigating and presenting mitigation evidence was not unreasonable application of Strickland test;
(3) state court determination that counsel was not deficient with respect to handling of defense expert's testimony was not unreasonable application of Strickland test; and
(4) state court determination that counsel was not deficient in failing to present additional mitigating evidence was not unreasonable. Affirmed.

LUTTIG, Circuit Judge.
Appellant Patrick Lane Moody was convicted of capital murder and sentenced to death by a North Carolina state court. In a state post-conviction proceeding, Moody alleged, inter alia, that his trial counsel rendered ineffective assistance at sentencing. The state court denied relief to Moody, and the district court dismissed Moody's subsequent section 2254 petition. We granted a certificate of appealability to review Moody's claim. Because we conclude that the state court's decision was neither contrary to nor an unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we affirm.

Moody was indicted in January 1995 for the first degree murder of Donnie Ray Robbins. J.A. 35. He initially entered a plea of not guilty. On July 14, 1995, during the state's presentation of evidence at his trial, Moody changed his plea to guilty. The state's evidence tended to show the following:

In July 1994, defendant started having an affair with Wanda Robbins (Wanda), the wife of the victim, Donnie Robbins. Over the course of their affair, defendant and Wanda discussed various plans to murder Wanda's husband and share the insurance proceeds. On 16 September 1994, defendant went to Loman's Trailer Park in Thomasville, North Carolina, to the home of Donnie and Wanda Robbins. Defendant identified himself as Darryl Thompson and pretended to be interested in buying Donnie's old Chevrolet automobile. He and Donnie went to a field near the trailer park where the automobile was located. Defendant asked Donnie to measure the automobile, purportedly to determine whether it would fit on a "roll-back" truck. As Donnie leaned over the hood of the automobile to measure it, defendant shot him in the back of the head with a .32 caliber semiautomatic pistol he had stolen the previous day from a house near the trailer park. State v. Moody, 345 N.C. 563, 481 S.E.2d 629, 631-32 (1997).

During the sentencing hearing, the state presented evidence that Wanda Robbins had sought to complete the paperwork necessary to receive insurance benefits for her husband's death early the morning after the murder, supporting the inference that the murder was committed for pecuniary gain. Moody, 481 S.E.2d at 632. The state also introduced evidence that Moody had been previously convicted in Florida of attempted first-degree murder and conspiracy to commit first-degree murder. Id.

In mitigation, Moody's counsel presented testimony from Steve Ervin, an ordained minister with a religious group called "His Laboring Few Biker's Ministry." Id. at 632. Ervin testified that Moody had been involved with the group in the time preceding the murder, but that his involvement diminished after he met Wanda. Id.

In addition, defendant's mother and half-brother testified as to Moody's "traumatic and abusive childhood." Id. Carl Jacobs, Moody's half-brother, testified that Moody's father abused Moody when he was a young child, beating him with a board, breaking plates over his head, and locking him in his room without meals for up to eighteen hours. S.J.A. 462-65. Jacobs also testified that when Moody was 17, he temporarily moved in with Jacobs to avoid the abuse. S.J.A. 466. Janice Wandel Moody ("Janice"), Moody's mother, testified that Moody's father punished Moody in order to hurt Janice, and that Moody told her that he was abused by his father. S.J.A. 486. Jacobs did not see Moody at all between the time that Moody was 4 or 5 years old and when Moody moved in with him at age 17; Janice saw Moody infrequently over that time period. S.J.A. 468-69, 485, 493.

Defense counsel also offered the testimony of Dr. Jerry Wayne Noble, a clinical psychologist. S.J.A. 313-14. Dr. Noble testified that Moody had told him that he had suffered physical abuse as a child. Dr. Noble also testified that a neighbor had contacted Social Services when Moody was a child to report that Moody was abused. S.J.A. 331. Dr. Noble diagnosed Moody as suffering from Attention Deficit Hyperactivity Disorder, borderline intellectual functioning (with I.Q. scores ranging from 74 to 82), alcohol dependence, a mixed personality disorder, child abuse syndrome, and physical problems resulting from psychological difficulties. S.J.A. 351-58.

Moody also testified on his own behalf at sentencing. He admitted killing the victim but denied that he did it for insurance money. He testified that he killed Donnie Robbins because Wanda Robbins threatened to turn him in to the police on outstanding Florida warrants if he did not commit the murder. S.J.A. 535. The jury unanimously found two aggravating factors: that Moody "has been previously convicted of a felony involving the use or threat of violence to the person" and that "the capital felony was committed for pecuniary gain." J.A. 379. One or more jurors considered the following factors to be present and mitigating: the murder "was committed while the defendant was under the influence of mental or emotional disturbance"; "the defendant acted under the domination of another person"; "the defendant aided in the apprehension of another capital felon"; "Moody was physically and verbally abused by his father during his formative years"; "Moody suffered during his childhood and adolescent years as a result of the lack of love and nurturing from his father and step-mother"; and "Moody was deceived by Wanda Robbins ... to believe that she ... was being physically abused by Donnie Ray Robbins." J.A. 379.

The jury recommended and the trial court imposed the death penalty. Moody, 481 S.E.2d at 631. Moody's conviction and sentence were upheld on direct appeal. Id.

In his state post-conviction proceedings, Moody alleged, inter alia, that his trial counsel were constitutionally ineffective for failing to perform an adequate mitigation investigation, failing to adequately prepare Dr. Noble for his testimony, and failing to introduce evidence pertaining to the aggravating factor of Moody's prior conviction for attempted murder. The state MAR court denied relief, J.A. 35-119, as did the district court. J.A. 335- 467. We issued a certificate of appealability to review Moody's claim that his counsel rendered ineffective assistance at sentencing.

* * *

Because the additional evidence Moody alleges his counsel should have presented would have been unlikely to weaken the case in aggravation or strengthen the case in mitigation, there is no reasonable probability that the jury would have weighed aggravating and mitigating factors differently when presented with that additional evidence. Faced with Moody's guilty plea, his earlier conviction for attempted murder, and the cold-blooded manner in which he murdered Robbins, we are confident that the jury would not have returned a different verdict even if counsel had performed exactly how Moody now argues they should have. Moody is thus not entitled to relief.

CONCLUSION - The judgment of the district court is affirmed. AFFIRMED.