A Family's Journey Through Tragedy to Forgiveness

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Elias Syriani was sentenced to death in Mecklenburg County for the 1990 murder of his wife, Teresa. The State of North Carolina has scheduled Elias Syriani's execution for November 18, 2005. Today, the living victims of this crime, Elias and Teresa's adult children—Rose, Sarah, John and Janet—urgently plead for their father's life to be spared.

Rose, Sarah, John and Janet Syriani were children when their father murdered their mother. Their lives were torn apart by their father's actions and they were left to raise themselves, burdened with loss, hate and confusion. Nevertheless, two years ago, after a decade of silence, they felt a need to confront this man who had caused them so much pain. In a remarkable encounter at Central Prison, Rose, Sarah, John and Janet experienced the beginnings of a healing process that continues to this day. They say the courage to confront and ultimately forgive their father came from their mother, Teresa. They found a different man than they expected, and they have been transformed as well, by learning of his sorrow, his love for them, and the power of their forgiveness. This transformation is not yet over.

Teresa Syriani's children understand more powerfully than anyone the loss and pain their father caused. Yet for Rose, Sarah, John and Janet, the arc of healing from their terrible loss now bends toward forgiveness, and a new relationship with their father and newly recovered memories of their mother. That healing is now threatened by another hurtful final loss. Here the death sentence will inflict a new wound on those who have already suffered from the crime. Recently speaking out against her father's death sentence, Sarah pleaded for mercy, for her father, and for her siblings, saying, “We've suffered enough.”

Please support Rose, Sarah, John and Janet Syriani's efforts, by asking Governor Easley to grant clemency for Elias Syriani.

State v. Syriani, 333 N.C. 350, 428 S.E.2d 118 (N.C. 1993) (Direct Appeal).

Following jury trial before the Superior Court, Mecklenburg County, Robert M. Burroughs, J., defendant was found guilty of first-degree murder of his wife and sentenced to death. Defendant appealed. The Supreme Court, Whichard, J., held that: (1) excusing prospective juror for cause because of his views on death penalty did not deny defendant's constitutional rights; (2) children's testimony regarding defendant's specific instances of prior misconduct toward them and their mother was properly admitted to show motive, opportunity, intent, preparation in absence of mistake or accident; (3) cross-examination of defendant with regard to both specific and general misconduct toward his wife was proper; (4) state was properly permitted to question defendant's character witnesses regarding specific acts of misconduct by defendant; (5) color photographs of victim's body were properly admitted to illustrate testimony; (6) evidence was sufficient to sustain conviction of first-degree murder; (7) aggravating circumstance that murder was especially heinous, atrocious, or cruel, was properly submitted, instructions were not too vague, and evidence supported determination of existence of circumstance; (8) defendant's testimony alone that his judgment was affected by emotional disturbance did not support reasonable inference that defendant's capacity to appreciate criminality of his conduct was impaired, lessened or diminished such as to require submission that mitigating circumstance; and (9) imposition of death penalty was not disproportionate. No error.

WHICHARD, Justice.

Defendant was tried on an indictment charging him with the first-degree murder of his wife, Teresa Yousef Syriani. The jury returned a verdict finding defendant guilty upon the theory of premeditation and deliberation. Following a sentencing proceeding pursuant to N.C.G.S. § 15A-2000, the jury recommended that defendant be sentenced to death. For the reasons discussed herein, we conclude that the jury selection, guilt, and sentencing phases of defendant's trial were free from prejudicial error, and that the sentence of death is not disproportionate.

State's evidence tended to show the following: Defendant and his wife were living apart, defendant in a motel, and his wife with their children in their home. On 28 July 1990, around 11:20 p.m., defendant drove to their home, but his wife had not returned from work. As she drove her automobile onto a nearby street, defendant blocked her way with his van.

Defendant got out of his van, gestured, and chased after her car as she put it in reverse. As his wife sat in her car, defendant began stabbing her with a screwdriver through the open door or window, while their ten-year-old son John sat in the seat beside her. John was unable to stop his father; he got out of the car and ran home to get his older sister. At least two neighbors watched from their homes as defendant stabbed his wife and then walked away. Teresa Syriani died twenty-eight days later due to a lethal wound to her brain.

David Wilson testified that he lived in the Syrianis' neighborhood. He knew defendant's son but only knew defendant by sight. On 28 July 1990, around 11:20 p.m., Wilson was at home when he heard children hollering. He looked out his window and saw a van parked across the street with the interior lights on and the door open. He looked again and watched defendant come toward the van, get into the driver's seat, and fumble with something. Then he saw defendant go back down the street and cross the street to a car in the driveway of the house next to Wilson's.

Defendant leaned over inside the car. Wilson saw the car shaking. Then Wilson went outside, whereupon he saw defendant back in the van. He also saw two young boys, John Syriani and John's friend. Wilson heard a young woman hollering "somebody help my mother" and went to the car. A woman in the car was covered in blood. A neighbor wiped her face. She looked to him "like somebody [who] had been shot in the face with a load of buckshot."

Thomas O'Connor testified that he lived near the Syrianis but did not know them. On 28 July 1990, around 11:20 p.m., he received a phone call from a neighbor prompting him to look out his window. O'Connor saw a man standing at a car halfway in a driveway holding what appeared to be a screwdriver and "stabbing into the car." O'Connor ran outside, yelling, and made eye contact with the man. The man kept stabbing into the car. O'Connor ran back inside to phone the police, then ran outside. He saw the van pulling away. The van stopped and the man, screwdriver in hand, got out and walked toward the car. The man saw O'Connor, turned back to the van, and drove away.

Defendant's eleven-year-old son, John, testified that the family had lived in the house in Charlotte since 1986 except for a week in the summer of 1988 when the police took him, his sisters, and his mother to a Battered Women's Shelter. Then they stayed with his mother's sister in New Jersey for about a month. When defendant came to take them back, they returned to Charlotte. In July 1990 he, his three sisters, and his mother lived in a motel. They moved back to their home when defendant moved out.

28 July 1990, John went with his mother to the Crown gas station. His father came by and asked him to go out with him. John rode home with his mother and saw his father's van stopped ahead as they approached their home. As his mother approached the turn onto the main street before their house, defendant moved the van to block her way. Then defendant got out of the van, gestured, and chased the mother's car. She put the car in reverse. Defendant opened the door and started stabbing John's mother, who started screaming. John tried to push his father's hands off her, but he could not stop his father. John ran home to get his older sister and told her, "Dad is killing Mom." John then ran to his friend's house. John and his friend ran back to his mother's car, now in a neighbor's driveway. Defendant was kneeling at the open door, stabbing into the car. Defendant then walked back to the van and yelled, "Go home bastard," in Arabic, to John. Frightened, John ran back down the street. Neighbors took John into their home.

On cross-examination, John testified that his father worked long hours. His father always carried a screwdriver as part of his work tools. His mother had never worked, had dressed according to Arabic tradition, and had worn no makeup or lipstick before they moved to Charlotte. His parents had argued, but mostly over the children. In 1988 or 1989, John's mother decided she did not like staying at home and wanted to get a job. At her second job at a gas station, she worked some nights. When his mother worked nights, his older sister babysat. Starting in 1990, his parents argued more frequently. Defendant did not like the fact that John's mother was working; he wanted her to stay home with the children. In July 1990, defendant moved into a motel.

When he first spotted the van the night of 28 July 1990, John thought the motor was turned off because the headlights were turned off. Defendant, however, turned on the headlights and turned his van to the right across the street. Defendant had stabbed John's mother once before the car came to a complete stop in a driveway. On redirect examination, John recalled seeing his father slap his mother when he was five and hit his mother in "the ear" on Easter Sunday, 1989. John also recalled seeing his mother "screaming and running out of the house" while his father stood at the door in the summer of 1988. Finally, John testified that his mother was a good mother. She and his father argued about three times a week, and his father called her names, for example, "whore."

Defendant's eldest daughter, Rose, testified about the events leading up to the stay at the Battered Women's Shelter in the summer of 1988. Rose and her mother were at home when defendant came in and threw the groceries at them. Defendant started to scream at his wife, jumping up and down and breaking a table with his foot. Then defendant went into the garage and returned with a large wooden bat. He ran upstairs after her mother, who had left the house. The police showed up shortly thereafter and took the mother and children to the shelter. Contrary to John's testimony, Rose testified that her parents fought constantly in Illinois. In the summer of 1990, her mother was sleeping in the younger daughter's bedroom. In July, they moved to a motel.

28 July 1990, John came to the front door banging and screaming, "Dad is trying to kill Mom." Rose called the police, saw her brother coming back, and ran to her mother. She saw her father enter his van, look at her, and drive away. When she reached her mother, her mother said, "Ma Ma, shut up." "Ma Ma" is Arabic for "honey."

On cross-examination, Rose maintained that her parents were always arguing and defendant would jump and yell at her mother, although there were times when her parents did not argue. Sometimes her father "would go downstairs around three o'clock in the morning ... and just start breaking things downstairs." During arguments between January and July 1990, her mother would say she would quit her job if defendant would buy food the children liked to eat. Rose also testified about the time defendant started yelling at her in Arabic and grabbed her around her throat, saying he was going to kill her. Rose remained angry with her father in 1988, 1989, and 1990 because he constantly disciplined the children--for example, they were not allowed to play outside after 5:00 p.m.--and he argued with her mother.

On redirect, Rose testified that her mother told her to "shut up" because she was screaming, holding her mother's hand, trying to sit her mother up, and shaking her to see if she were still alive. Once her mother spoke, she stopped shaking her and went for help. Rose then testified about a number of specific instances of verbal and physical abuse by her father. When defendant thought she had scratched his new van, he grabbed her and started to kick her. Crying, she ran out of the house. She testified: "[H]e got me on the floor and kicked me ... into the ground. People were walking by and my mom pulled his leg off me." Defendant told her mother he would kill her if she ever left him, that she would not live without him, and that he would "f--- up our world."

On recross-examination, Rose testified that the children were always scared of their father even though he provided well for them. Jeane Allen, a registered nurse at the Carolinas Medical Center, testified that she saw Mrs. Syriani at 12:24 a.m. on 29 July 1990. The victim was covered in blood and suffered from lacerations to her arm, right side, and face. As she was being moved, she grasped her jaw and complained, "It hurts." Monitors showed she had difficulty breathing, so someone inserted a tube through her nose into her lungs to facilitate breathing. On cross-examination, Allen testified that the cuts below the victim's temple area were superficial but the ones above were not.

Kenneth C. Martin, an attorney, testified that the victim had asked Martin to represent her in a domestic action against defendant in November, 1989. He prepared a complaint against her husband, but she only decided to file it on 27 June 1990. An ex parte domestic violence order was issued on 5 July 1990. Alice Safar, the victim's older sister, testified that she visited her sister at the hospital on 29 July 1990. Mrs. Syriani squeezed her hand when Safar spoke to her. On cross-examination, Safar testified that the marriage between her sister and defendant had been arranged.

James Sullivan, a forensic pathologist and medical examiner, testified that he performed an autopsy on the victim's body on 24 August 1990. Seven healed wounds were located on her left cheek, five wounds on the left side of her neck, five wounds on her right cheek and around her mouth, and five wounds to the back of her right hand and arm. There were visible healed wounds in the mouth where the victim's jaw had been fractured, and several of her teeth had been fractured or lost. Several of the wounds had been sutured. All of the wounds had a linear or rectangular configuration.

However, in Sullivan's opinion, the chronic penetrating brain wound caused the victim's death. A three-inch deep puncture wound to the right temple, to the right of her right eye, penetrated the victim's brain, going through the right temporal lobe and into the deep central area of her brain known as the basal ganglia area. Such a wound would cause brain dysfunction, unconsciousness or coma, infarct or stroke, and paralysis on the left side of her body. There was a small rectangular defect in the approximately one-eighth-inch-thick bone. The wound was caused by a narrow instrument like a squared-off pick, screwdriver, or knife. Sullivan opined that it would take a substantial amount of force to penetrate an adult's skull. On cross-examination, Sullivan testified that none of the arm or hand wounds were life threatening.

Charlotte Police Department Investigator Hilda M. Griffin testified she arrived at the scene around 11:37 p.m. She found the victim alive, sitting in the car with her head laid back. Blood was everywhere. Mrs. Syriani tried to speak, but Griffin could not tell what she was saying. When Griffin arrived at the fire station where defendant had stopped for first aid, defendant had already been arrested, and his van had been searched. He appeared sober. There was blood all over him, but only some light scratches on his arm and shoulder. Griffin testified that a team searched for, but never found, the murder weapon.

Dr. Richard C. Stuntz, Jr., the first witness for the defendant, testified that on the morning of 29 July 1990, he treated defendant in the emergency room of Carolinas Medical Center. Defendant's hand was bruised. There was an abrasion on his lower left leg, and there were scratches on his nose and shoulder which could have been caused by a fingernail. His hand was X-rayed, and he was treated with a tetanus shot and pain medicines. On cross-examination by the prosecutor, Stuntz testified that defendant told him he had been assaulted by his wife.

Charles M. Stanford, a fireman, testified that around 1:00 a.m. on 29 July 1990 defendant walked into his station. Stanford tended to scratches on defendant's face, arms, and chest. Defendant told him he had been in a fight. On cross-examination, Stanford testified that defendant said his wife had assaulted him. Walid Bouhussein testified that he lived two or three blocks from the Syrianis and had known them almost three-and-one-half years. Their families exchanged visits and ate together a number of times. He had never seen any arguments between defendant and his wife. His children felt "a warmth" toward the defendant. Both defendant and his wife were very nice people, neither appearing violent nor showing temper. Defendant was very hospitable, a "mild-mannered man." On cross-examination, Bouhussein admitted that Mrs. Syriani had told his wife that defendant mistreated her.

On redirect, Bouhussein testified that defendant was known in the community as a very hard-working, mild-mannered man. He did not have a reputation for violence, but he did have a reputation for truth and veracity. Upon recross-examination, the prosecutor questioned Bouhussein about specific instances of defendant's misconduct toward his wife and children. Michael Carr, a domestic law attorney, testified that he had talked with defendant about the ex parte domestic violence order. At the 12 July 1990 hearing defendant and his wife agreed to joint counseling, but a few days later Mrs. Syriani changed her mind and no longer wanted it. Carr testified that defendant had wanted very much to be reconciled with his wife.

David D. Stevens testified that he first met defendant in 1983 when they worked at Kerr Glass in Chicago. Defendant was a good worker. When Kerr Glass closed, Stevens moved to Charlotte, became a supervisor at Midland Machine Corporation, and hired defendant. During the time he knew them, he never noticed a problem between the Syrianis. The children did not appear to be afraid of their father. Further, defendant never argued with, abused, or fought with any fellow employees. On cross-examination, however, Stevens conceded that he had told defendant's current boss not to hire defendant because he had a "terrible temper and the men were afraid of him."

Harold Linn testified that he had been a plant superintendent with Protective Door Manufacturing Company and had met defendant in 1977. Defendant was looking for work, and Linn hired him. Linn considered defendant a terrific employee, one of the hardest workers at the plant, capable of "great, beautiful production." Even after Linn retired and moved to North Carolina, he maintained contact with the Syriani family. He was very close to defendant. He respected him very much as a man who had earned everything for himself, having come to this country with only a few dollars in his pocket. Linn also testified that there seemed to be a great deal of love in the Syriani household, and the Syriani children always seemed to enjoy having the Linns visit. They were "bright kids, very well trained. You couldn't ask for a better family." The prosecutor cross-examined Linn with regard to specific acts of misconduct by defendant toward his wife and children. Linn replied that he could not believe any of those things occurred, that it was not in defendant's nature, and that all he ever saw was that defendant had "good and deep family devotion, the kind that most of us would envy."

Florence Linn, Harold Linn's wife, testified that when the Linns visited the Syriani home they never observed discord or arguments. She never noticed abusive conduct by defendant toward his wife or children, only "loving conduct." She thought a better family atmosphere could not have been asked for, and that the children were bright, healthy, and well-loved.

Odett Syriani, defendant's older sister, testified that the Syriani children now live with her in Illinois. Her brother's marriage had been arranged. Teresa Syriani, the victim, had been living in New Jersey. Teresa and Odett's brother were married in Jordan, and he followed his wife back to the United States. Odett visited the family for six months in 1987, and later the family visited Odett in Chicago. She did not notice any problems between defendant and his wife. They seemed to get along very well together.

Defendant testified on his own behalf. Born in Jerusalem in 1938, he had to leave school at age twelve when his father, a laborer, became sick. He worked to help his mother support his three sisters and two brothers. He learned the machinist trade. He entered the Jordanian Army at age nineteen as a civilian machinist. His sisters did not work because "their job was to finish school, then they engage and then they get married." After leaving the army, he worked in a garage and then as a singer on a radio station. At the age of thirty-six he married Teresa in Amman, Jordan. She was twenty-four. Friends had arranged the marriage. She returned to the United States, and he followed. They lived in Washington, D.C., where he worked as a busboy and learned English at night. They then moved to Chicago, where defendant found work as a machinist with Protective Door.

When Protective Door closed some six years later, defendant went to work for Kerr Glass Manufacturing, where he stayed almost six years. Although Mrs. Syriani had worked at Woolworth's, she had stayed at home after the birth of Rose, their first child. Defendant purchased a home for his family in Calumet, Illinois, near Chicago. When Kerr Glass closed in 1986, defendant moved to North Carolina, found a job and a place to live, and brought his family to Charlotte. While in Chicago, he and his wife rarely argued. When they did, it was nothing of a serious nature. They spoke Arabic in their home. Whenever he was away, he called the family every night, and they missed him very much. In Charlotte, Mrs. Syriani asked if she could take a part-time job. He bought another car for her use. Her first job was in a restaurant, but she quit and found work at a local service station. After she began working, she changed "fast[,] very fast." Although he loved his wife, he was not happy with the change. Despite the problems caused by his wife's deviation from Arabic tradition, defendant did not strike his wife. Rather, he tried to make her "more happy."

Defendant recalled receiving papers from a lawyer about his wife's request for a divorce. In July 1990, she came home with police officers and told defendant he had to leave his keys and move out of the home. Defendant packed his clothes and moved into a hotel room. Defendant visited the neighborhood several times. He saw John skateboarding outside and asked John to tell his mother he wanted to talk with her. John did not respond. Another time, defendant asked John to ask his mother for the small television because he did not have one in his hotel room. Mrs. Syriani refused his request.

On 27 July 1990, defendant worked his normal half day. Late that evening, he saw his son outside the gas station. He asked John whether he could go to lunch with him the next day. Mrs. Syriani said John could not go with his father. On 28 July 1990, defendant went to the gas station and asked whether John could go out to lunch, but Mrs. Syriani refused to let the child go. Defendant returned to his motel room. Around 8:00 p.m., he went to the supermarket near the gas station. He did not see his wife's car pass by and believed that his wife was still working at 11:00 p.m. Concerned about the family's safety, he left the supermarket and went to their home, but his wife was not there. On his way to the gas station to ascertain why his wife was late in coming home, he saw her car. She stopped her car, and he went up to ask about his children and who was supervising them. She scratched his face, and he pushed her away. She opened the driver's side door, hitting him in the leg. He grabbed the door, and she placed the car in reverse. He struck at her through the open window with a screwdriver he had in his pocket, trying to get her to stop moving the car. He never had any desire to hurt or kill his wife and remembered hitting her only three or four times. He loved his wife very much.

On cross-examination, defendant recalled the time in 1985 when he thought his daughter Rose had scratched his new van. He did not drag her by the hair and kick her. He spanked her on the "butt." It was the first spanking he had ever given her. Defendant denied pulling hair out of his wife's head over an argument about a washing machine. He denied knocking Sara down and kicking her in the summer of 1989. She had lost her tennis shoe, and he only spanked her on the bottom. He denied ever putting his hands around Rose's throat. Defendant admitted he had hit his wife when they had lived in Illinois and had hit her on the hand while driving in the van on Easter Sunday, 1989. They had been arguing about lamps, and she had put her hand on the door as if to open it. Defendant testified that during the last three months of their marriage his wife beat him, sometimes in front of the children. On the night she told him she would leave him, she hit him and then called the police to escort her and the children away from their home. Fifty minutes later, defendant called the police and told them his wife had assaulted him but he did not want her arrested. Defendant stated that he loved his wife and children, and up until the end he hoped he and Teresa would reconcile.

Cindy Smith testified for the State on rebuttal. She lived next door to the Syrianis in Charlotte. Smith thought Mrs. Syriani was a gentle person, but her husband had a violent temper. Upon cross-examination, Smith admitted that she had never heard an argument, that the Syrianis were a discreet family and conducted their business within their home, but she could see that defendant had an incredible temper "from the fear and the terror in the children's faces and Teresa['s]." Defendant moved to dismiss at the close of the State's evidence. The trial court denied the motion. The jury found defendant guilty of first-degree murder based on premeditation and deliberation.

At the capital sentencing hearing, defendant testified that he had been out on bond for a short time, during which he had arranged for the care of his children. He testified that he felt "real, very terrible" about what had happened, that he loved his wife and missed her very much, and that he was very sorry for what he had done. He reiterated that at the time of the confrontation with his wife, he was very emotional and upset, feeling he was going to lose his wife and family. Finally, he testified that in his eleven months in jail he had never been cited for any misconduct or caused trouble for anyone.

Michael Thomas McCarn, a deputy with the Mecklenburg County Sheriff's Department, testified that during defendant's eleven months of incarceration he never gave anyone trouble, was "very cooperative," and was a model prisoner.

In rebuttal, Sara Syriani, defendant's second oldest daughter, testified for the State that on one occasion her father threatened her mother with a pair of scissors. On Easter Sunday, 1988, he hit her mother. Further, her father had yelled at her, pushed her down, and kicked her. Finally, on her graduation from sixth grade, he had yelled at the victim, followed her upstairs, grabbed her by her hair, thrown her down the stairs, and dragged her into the kitchen, ripping her shirt. Following the capital sentencing hearing, the jury found one aggravating circumstance--that the murder was especially heinous, atrocious, or cruel--and eight mitigating circumstances. Among these was one statutory mitigating circumstance, that the murder was committed while defendant was under the influence of mental or emotional disturbance. The remaining nonstatutory mitigating circumstances pertain to defendant's understanding of the severity of his conduct, defendant's demonstrated ability since his incarceration to abide by lawful authority, defendant's history of good work habits, defendant's history of being a good family provider, defendant's good character or reputation in the community in which he lived, defendant's upbringing in a different culture, and defendant's aggravation by events following the issuance of the ex parte domestic violence order.

Upon finding that the mitigating circumstances were insufficient to outweigh the aggravating circumstance, and that the aggravating circumstance was sufficiently substantial to call for the death penalty, the jury recommended a sentence of death.

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Defendant contends that the trial court erred in overruling his objections and allowing testimony by his children--John, Rose and Sara Syriani--about defendant's specific instances of prior misconduct toward them, contrary to Rules 404(b) and 403 of the North Carolina Rules of Evidence. John Syriani, age eleven, testified for the State. During cross-examination, John responded to many questions about how well his parents got along. John testified that his father was a giving person and his parents got along, but sometimes they argued. Beginning in 1990, they argued more and more. In July 1990, defendant moved out of the house. During redirect examination, John testified, over objection, that when he was five, he saw his father slap his mother. Further, he frequently heard his parents arguing and heard defendant call the victim "whore." John further testified, without objection, that his parents argued a lot, his father backhanded the victim during an argument on Easter Sunday, 1989, and that in 1988, prior to the stay at the Battered Women's Shelter, John saw her screaming and running from the house while his father stood in the doorway.

Rose Syriani, age fourteen, testified on direct examination, without objection, that in Illinois her parents were constantly fighting. Sometime during the summer of 1988, she left the house with her mother and siblings and went to the Battered Women's Shelter. Rose recalled, without objection, that on the day before, defendant had entered the house, thrown down the groceries he was carrying, and started screaming at her mother. Jumping up and down, defendant broke a table with his foot and called her and her mother "nasty" names. Defendant left the house but returned with a big wooden bat, with which he threatened them, trying to scare them. Rose got in front of her mother, trying to keep her father away from her mother. "[A]nd he was over me with a bat trying, you know, trying to scare us." Rose recalled that defendant later chased her mother out of the house with the bat.

During cross-examination, Rose testified that her parents would always get into bad arguments, that defendant would jump at her mother, start screaming for no reason, slam doors and break tables. In the six months before her mother's death, her parents argued about her mother's working. Then defense counsel asked Rose, "Has he ever beat you?" She replied affirmatively. While living in Charlotte, he started yelling at her, grabbed her by the throat, and said he was going to kill her.

During redirect examination, Rose testified, over objection, that defendant had also grabbed her by the hair and kicked her sometime two or so years before. Also over objection, Rose testified that defendant told her mother he would kill her if she ever left him. "He told her that she would not live without him. She wouldn't live at all." Finally, Rose recalled, over objection, that shortly before killing her mother, defendant had said that if her mother ever left him he would mess up the children's world.

Defendant contends that the evidence of specific instances of misconduct toward his wife and children was elicited from his children only to prove defendant's character, to show that he acted in conformity therewith, or alternatively, that the incidents were too remote in time, some more than two years prior to the killing, or insufficiently similar in nature to defendant's assault on their mother, to be admissible. See State v. Artis, 325 N.C. 278, 299, 384 S.E.2d 470, 481 (1989) (use of evidence under Rule 404(b) is guided by two constraints, similarity and temporal proximity), sentence vacated, 494 U.S. 1023, 110 S.Ct. 1466, 108 L.Ed.2d 604 (1990), on remand, 329 N.C. 679, 406 S.E.2d 827 (1991). Defendant failed to object to the testimony about several incidents, and our review of that testimony is limited to consideration of whether its admission constituted plain error.

We conclude that the testimony about defendant's misconduct toward his wife was proper under Rule 404(b) to prove motive, opportunity, intent, preparation, absence of mistake or accident with regard to the subsequent fatal attack upon her. Rule 404(b) provides that while "[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," such evidence "may ... 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) (1992).

"Rule 404(b) state[s] a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged."

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The trial court submitted one aggravating circumstance, that the murder was especially heinous, atrocious, or cruel, N.C.G.S. § 15A-2000(e)(9) (1988), and two statutory mitigating circumstances, that the defendant had no significant history of prior criminal activity, N.C.G.S. § 15A-2000(f)(1) (1988), and that the capital felony was committed while the defendant was under the influence of mental or emotional disturbance, N.C.G.S. § 15A-2000(f)(2) (1988).

Further, the trial court submitted the eight requested non-statutory mitigating circumstances, as follows: the defendant understands the severity of his conduct; the defendant has demonstrated remorse; the defendant, since his incarceration, has demonstrated an ability to abide by lawful authority; the defendant has a history of good work habits; the defendant has a history of being a good family provider; the defendant has been a person of good character or reputation in the community in which he lived; and any circumstance or circumstances arising from the evidence which the jury finds to have mitigating value.

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In conducting proportionality review, we "determine whether the death sentence in this case is excessive or disproportionate to the penalty imposed in similar cases, considering the crime and the defendant." Brown, 315 N.C. at 70, 337 S.E.2d at 829. We compare similar cases in a pool consisting of all cases arising since the effective date of our capital punishment statute, 1 June 1977, which have been tried as capital cases and reviewed on direct appeal by this Court and in which the jury recommended death or life imprisonment or in which the trial court imposed life imprisonment after the jury's failure to agree upon a sentencing recommendation within a reasonable period of time. State v. Williams, 308 N.C. 47, 79, 301 S.E.2d 335, 355, cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 177, reh'g denied, 464 U.S. 1004, 104 S.Ct. 518, 78 L.Ed.2d 704 (1983). This pool includes only those cases found to be free of error in both phases of the trial. State v. Jackson, 309 N.C. 26, 45, 305 S.E.2d 703, 717 (1983). We do not, however, "necessarily feel bound ... to give a citation to every case in the pool of 'similar cases' used for comparison." Williams, 308 N.C. at 81, 301 S.E.2d at 356. Rather, we limit our consideration to those cases "which are roughly similar with regard to the crime and the defendant...." State v. Lawson, 310 N.C. 632, 648, 314 S.E.2d 493, 503 (1984), cert. denied, 471 U.S. 1120, 105 S.Ct. 2368, 86 L.Ed.2d 267 (1985).

If, after making such a comparison, we find that juries have consistently been returning death sentences in the similar cases, then we will have a strong basis for concluding that a death sentence in the case under review is not excessive or disproportionate. On the other hand if we find that juries have consistently been returning life sentences in the similar cases, we will have a strong basis for concluding that a death sentence in the case under review is excessive or disproportionate. Id.

Characteristics distinguishing the present case include (1) a murder of a wife preceded by many years of physical abuse and threats to her; (2) fear on the part of the victim; (3) a calculated plan of attack by the defendant; (4) a senseless and brutal stabbing in front of other people, found to be "especially heinous, atrocious, or cruel" by the jury; (5) a period of time in which the victim suffered great physical and psychological pain before death; and (6) a distinct failure by the defendant to exhibit remorse after the killing.

The jury found only one statutory mitigating circumstance, that the crime was committed while the defendant was under the influence of mental or emotional disturbance. It found five non-statutory mitigating circumstances: that defendant understands the severity of his conduct; that he has, since his incarceration, demonstrated an ability to abide by lawful authority; that he has a history of good work habits; that he has a history of being a good family provider; and that he has been a person of good character or reputation in the community in which he lived. It found two circumstances under the catchall: that the defendant was raised in a different culture and that he was aggravated by events following the issuance of the ex parte domestic violence order.

Of the cases in which this Court has found the death penalty disproportionate, only two involved the "especially heinous, atrocious, or cruel" aggravating circumstance. State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987); State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983). Neither is similar to this case. In Stokes, the defendant and several others planned to rob the victim's place of business. During the robbery one of the assailants severely beat the victim about the head, killing him. Stokes, 319 N.C. at 3, 352 S.E.2d at 654.

We find the dissimilarities between Stokes and this case significant. First, the defendant in Stokes was seventeen-years-old; defendant in this case is fifty-two-years-old. Second, the defendant in Stokes was convicted on a felony murder theory. There was virtually no evidence of premeditation and deliberation. In the present case, defendant was convicted on a theory of premeditation and deliberation, and there was substantial evidence of both premeditation and deliberation. There was also no evidence in Stokes showing who was the ringleader in the robbery, or that the defendant deserved a death sentence any more than did an older confederate who received a life sentence.

In Bondurant, the defendant shot the victim while they were riding together in a car. Bondurant, 309 N.C. at 677, 309 S.E.2d at 173. The Court "deem [ed] it important in amelioration of defendant's senseless act that immediately after he shot the victim, he exhibited a concern for [the victim's] life and remorse for his action by directing the driver of the automobile to the hospital." Id. at 694, 309 S.E.2d at 182. He then went inside to secure medical treatment for the victim. The defendant also spoke with the police at the hospital, confessing that he shot the victim. In the present case, by contrast, the defendant offered neither comfort nor help to his wife, nor did he attempt to secure help from others. As his son returned to his mother, after running off to seek help, defendant yelled at him in Arabic, "Bastard." Then defendant left the scene and drove to a nearby fire station, where he told a fireman that he needed medical attention because he had been in a fight. His later expressions of remorse at the trial are not comparable to the actions taken by the defendant in Bondurant.

There are three similar cases in the pool in which the jury recommended a sentence of death after finding as an aggravating circumstance that the murder was especially heinous, atrocious, or cruel. State v. Spruill, 320 N.C. 688, 360 S.E.2d 667 (1987), cert. denied, 486 U.S. 1061, 108 S.Ct. 2833, 100 L.Ed.2d 934 (1988); Huffstetler, 312 N.C. 92, 322 S.E.2d 110; State v. Martin, 303 N.C. 246, 278 S.E.2d 214, cert. denied, 454 U.S. 933, 102 S.Ct. 431, 70 L.Ed.2d 240, reh'g denied, 454 U.S. 1117, 102 S.Ct. 693, 70 L.Ed.2d 655 (1981). Further, we believe that another case--State v. Boyd, 311 N.C. 408, 319 S.E.2d 189 (1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2052, 85 L.Ed.2d 324 (1985)--is similar, and comparison to the present case is warranted.

In Huffstetler, defendant beat his mother-in-law to death with a cast iron skillet after an argument. The victim had multiple wounds on her head, neck and shoulders. Her jaw, neck, spine and collarbone were fractured. After beating the victim, the defendant went home to change his bloody clothes, returned to the scene to remove the skillet, and went to visit a woman friend. Huffstetler, 312 N.C. at 98-100, 322 S.E.2d at 115-16. The jury in Huffstetler found as the single aggravating circumstance that the murder was especially heinous, atrocious, or cruel. Id. at 100, 322 S.E.2d at 116.

The jury also found three mitigating circumstances: that the defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired; that the killing occurred contemporaneously with an argument and by means of an instrument acquired at the scene and not taken there; and that the defendant did not have a history of violent conduct. Id. Notwithstanding the fact that defendant suffered from an emotional or mental disorder, this Court concluded that the sentence of death was not disproportionate, based on evidence similar to that in the present case, including the brutal nature of the killing, the lack of remorse shown by the defendant, and the defendant's cool actions after the murder.

In Martin, the defendant followed his wife to a neighbor's apartment and fired two shots at her. She slumped to the floor, unable to escape. The defendant proceeded to pistol whip her and taunt her for almost twenty-five more minutes, fired a round at her in the presence of their young child, and then fired several more rounds, killing her. Martin, 303 N.C. at 248, 278 S.E.2d at 216. The jury found as the single aggravating circumstance that the murder was especially heinous, atrocious, or cruel. Id. As in the present case, the murder was preceded by threats against the victim, the crime involved great physical and psychological pain and suffering, the murder was not done in a quick and efficient manner, and the victim was murdered in a public place in view of her child and neighbor. There, too, the defendant suffered from a mental or emotional disturbance. This Court found the sentence of death not disproportionate, emphasizing the prior threats and the brutal manner in which death was inflicted. Id. at 256, 278 S.E.2d at 220-21.

In Spruill, the defendant was convicted of killing a former girlfriend. He followed her around a nightclub and then out into the parking lot as she left. She apparently was frightened. He jumped into her car and stabbed her. Friends pulled him out of the car, but he eluded their grasp and returned to his victim, cutting her throat. She strangled on her own blood. Spruill, 320 N.C. at 690-92, 360 S.E.2d at 668-69. The jury found as the single aggravating circumstance that the murder was especially heinous, atrocious, or cruel, but found none of the five submitted mitigating circumstances. Id. at 701, 360 S.E.2d at 674. This Court upheld the sentence of death.

In Boyd, the defendant was convicted of killing his estranged girlfriend. Defendant threatened the victim several times after following her to a shopping center. As she tried to leave, he pulled out a knife and stabbed her repeatedly in front of her mother and her daughter. The victim suffered considerably before her death. Boyd, 311 N.C. at 412-13, 319 S.E.2d at 194. The jury found as aggravating circumstances that the murder was especially heinous, atrocious, or cruel and that the defendant previously had been convicted of a felony involving the use or threat of violence to the person. Id. at 415-16, 319 S.E.2d at 195-96. The jury found one or more unspecified mitigating circumstances of the sixteen circumstances submitted. Id. at 416-17, 319 S.E.2d at 195-96. In upholding the sentence of death, this Court emphasized the overwhelming evidence of guilt, the prior threats, and the premeditated brutality of the murder, including the suffering of the victim. Defendant relies on four cases in which the jury recommended life sentences as being similar to this case. State v. Madric, 328 N.C. 223, 400 S.E.2d 31 (1991); State v. Harold, 312 N.C. 787, 325 S.E.2d 219 (1985); State v. King, 311 N.C. 603, 320 S.E.2d 1 (1984); State v. Myers, 299 N.C. 671, 263 S.E.2d 768 (1980).

In Harold, King and Myers, the killings were by gunshot, and there was not the evidence of excessive brutality or suffering that there is in the present case. In Harold, the defendant entered the house through an unlocked window and chased the victim, his former girlfriend, through the house and out into a neighboring yard. The defendant caught the victim and threw her to the ground, then stood over her and shot her at point blank range as she begged for her life. Harold, 312 N.C. at 789, 325 S.E.2d at 220-21. There was evidence, however, that defendant suffered from paranoid schizophrenia. Id. at 790, 325 S.E.2d at 221.

In King, the defendant shot his former girlfriend with a pistol and again with a rifle. There was evidence of an argument about a truck purchased by the defendant but registered in the victim's name, and apparently no evidence that the victim feared the defendant. King, 311 N.C. at 605-07, 320 S.E.2d at 3-4. In Myers, there was evidence that the defendant had physically and verbally abused his wife, speaking to her sometimes as if she were a child and pulling her hair or ordering her to bed without her clothes. Further, there was evidence that the defendant had threatened the victim and that she feared him. Myers, 299 N.C. at 674-76, 263 S.E.2d at 770-72. On the day of the killing, the defendant accosted his wife and forced her to drive while he held a gun to her head. The victim pushed the gun away, but the defendant regained control of the gun and fired, killing her with that shot. Id. at 678, 263 S.E.2d at 773.

In Madric, the defendant was convicted of stabbing a pregnant mother to death and dragging her body out of her car and into the woods beside defendant's driveway. Madric, 328 N.C. at 225, 400 S.E.2d at 33. However, the murder was not planned but was committed while the defendant was committing robbery and kidnapping. Further, the victim was a stranger to the defendant. The murder was not in public or in front of family or friends, and there was no evidence of prior threats to the victim or history of violence by the defendant toward the victim. These circumstances distinguish these cases from the present case. There is another case that is facially similar to the present case, State v. Bearthes, 329 N.C. 149, 405 S.E.2d 170, in which the jury recommended a life sentence. In Bearthes, the defendant stabbed his estranged wife through the open window of her car in front of at least four witnesses and two of their children. The victim suffered thirty-four wounds, twenty-three of which were life threatening, and died soon after the attack. Bearthes, 329 N.C. at 152-53, 162, 405 S.E.2d at 171-72, 177.

The record shows that the jury found the single aggravating circumstance that the murder was "especially heinous, atrocious, or cruel." It found two statutory mitigating circumstances: that the defendant had no significant history of prior criminal activity, and that the capital felony was committed while the defendant was under the influence of mental or emotional disturbance. It also found five non-statutory mitigating circumstances: that the defendant was seeking marriage and religious counseling at the time of the offense; that his conduct in jail between the offense date and the sentencing date had been exemplary; that he voluntarily surrendered himself at the sheriff's department and thereafter voluntarily confessed both orally and in writing to his involvement in the offense; that he had exhibited religious beliefs before his incarceration; and that he had been a good neighbor. We find the dissimilarities between Bearthes and this case significant, however. InBearthes, the defendant had not physically or verbally abused his wife or threatened her directly.

There was no evidence that the attack was anything but unexpected by the victim. She had just rolled down her window to give the defendant directions to an outing. Finally, there was evidence that the victim died within five minutes of the attack, that the defendant was in shock and could not remember the attack and, seeing blood on his hands, asked his son to drive him to the sheriff's department. The defendant "asked [the deputies] about his wife because he was concerned she might be hurt." Id. at 154, 405 S.E.2d at 173. These facts distinguish Bearthes from the present case.

We find that Huffstetler, Martin, Spruill and Boyd are the cases in the pool most comparable to this case. In light of these cases, we cannot say that the death sentence in this case was excessive or disproportionate, considering both the crime and the defendant. We hold that the defendant received a fair trial and sentencing hearing, free of prejudicial error. In comparing this case to similar cases in which the death penalty was imposed, and in considering both the crime and the defendant, we cannot hold as a matter of law that the death penalty was disproportionate or excessive. Robbins, 319 N.C. at 529, 356 S.E.2d at 317. NO ERROR.

Syriani v. Polk, 118 Fed.Appx. 706 (4th Cir. 2004) (Habeas)

Background: Petitioner was convicted by North Carolina jury of capital murder and sentenced to death. After unsuccessfully challenging his convictions in state court on direct review and in state habeas proceedings, petitioner sought federal habeas relief. The United States District Court for the Western District of North Carolina, at Charlotte, Graham C. Mullen, Chief Judge, denied petition. Petitioner appealed.

Holdings: The Court of Appeals, Traxler, Circuit Judge, held that:

(1) counsel's alleged failure to further investigate and present mitigating evidence of defendant's cultural background and social history did not constitute ineffective assistance, and
(2) counsel's alleged failure to present mitigating evidence of defendant's mental health problems did not constitute ineffective assistance. Affirmed.

TRAXLER, Circuit Judge.

Elias Hanna Syriani was convicted by a North Carolina jury of the capital murder of his wife and sentenced to death. After unsuccessfully challenging his convictions in state court on direct review and in state habeas proceedings, Syriani filed a petition for writ of habeas corpus in federal district court. See 28 U.S.C.A. § 2254 (West 1994 & Supp.2004). The district court denied his application for relief, but granted his certificate of appealability. For the reasons set forth below, we affirm.

* * *

In June 1990, Teresa told Syriani that she intended to divorce him. Syriani, in accordance with Arabic traditions, wrote to Teresa's brothers in Jerusalem and Minnesota for help, but to no avail. There was evidence that Syriani threatened to kill Teresa if she ever left him. Nevertheless, Teresa took the children and temporarily moved into a motel. She then obtained a court order requiring Syriani to leave the marital home and to stay away from her and the children.

According to Syriani, Teresa appeared at their home with two policemen and the order and told him that he had to relinquish his house keys and leave. Syriani testified that he took his clothes and began living in motels. Teresa rebuffed Syriani's attempts at reconciliation and rejected his request that they seek marital counseling.

According to Syriani, in the late evening hours of July 28, 1990, he was watching the road that Teresa and John would travel home from her job at the gas station, and he became worried because Teresa's car had not yet passed. Thinking that he had missed her, he drove to the neighborhood, but he did not see her car. As he was driving out, he saw Teresa's car pull into the neighborhood.

He testified that he stopped his van to talk to her, but he denied blocking her path of travel. According to Syriani, Teresa stopped her car as well and he approached the driver's side window, which was down. Syriani testified that he was worried and hurt. He testified that he asked Teresa, "With whom did you leave my kids, by themselves?" J.A. 815.

According to Syriani, Teresa did not like what he said and scratched his face. He pushed her away from his face, but Teresa opened the car door and hit him with enough force to cause an injury to his leg. According to Syriani, he grabbed the door, but by that time she had put the car in reverse. He testified that he had a "screwdriver in [his] pocket, and [he] hit her from the window." J.A. 817.

Syriani testified that he was moving with the door, with the car moving in reverse. He testified that he did not intend to hurt her or kill her, and only remembers hitting her three or four times.

In addition to presenting the testimony of Syriani regarding the events of that night, Syriani's counsel called a number of neighbors and co-workers who testified that Syriani was a gentle, hard-working man, with a good nature and character, and that the Syriani household was a loving and happy one.

In closing argument, trial counsel urged the jury to find that Syriani and Teresa, embroiled in an emotional divorce situation, had become engaged in an argument, and that Syriani had responded reasonably and in self-defense to his being scratched, hit by the door, and carried backwards down the street by the moving car.

He argued that there was no evidence of premeditation and deliberation on Syriani's part, which was necessary to convict Syriani of first degree murder, and that there was also no malice, which was necessary to convict Syriani of second degree murder. At most, counsel argued, the jury should consider Syriani's actions as voluntary manslaughter because he had responded to Teresa's attack and inflicted the fatal wound, without malice, but in the heat of passion. The jury found Syriani guilty of first-degree murder on the basis of premeditation and deliberation.

During the penalty phase of the trial, counsel again presented Syriani as a hardworking immigrant who lost control of his emotions on the night that he stabbed his wife. Counsel primarily relied upon the testimony of the neighbors and acquaintances who had testified during the guilt phase as to Syriani's good character and work ethic.

Counsel also presented evidence that Syriani, while released on bond, did not attempt to flee the country and, instead, took steps to ensure that his children were cared for and given a home with his mother and sister Odeet, who had by that time also immigrated to the United States and settled in the Chicago area.

Counsel also presented the testimony of a Mecklenburg County jailor that Syriani had adjusted well to incarceration and had been a model prisoner. Syriani testified during the penalty phase as well. He testified that he loved his wife and that, at the time of the assault, he was very emotional and upset; he felt as if he were losing his wife and children and had lost control of his family. He testified that he was deeply sorry for what he had done.

In rebuttal, the State presented the testimony of Sara Syriani, the couple's middle daughter. Sara testified that she witnessed her father chase her mother with a pair of scissors during one argument, backhand her mother in the ear while they were riding in the car on another occasion, and pull her mother down the stairs by her hair and rip her shirt on yet another occasion. She also testified that Syriani had pushed her down and kicked her while she was looking for a shoe that she had lost.

At the conclusion of the penalty phase, the jury found as an aggravating factor that the murder of Teresa was especially heinous, atrocious, or cruel. The jury also found eight mitigating circumstances, but unanimously decided that the aggravating circumstance outweighed these mitigating circumstances and recommended that Syriani be sentenced to death. On direct appeal, the North Carolina Supreme Court affirmed Syriani's conviction and death sentence, see Syriani, 428 S.E.2d at 121, and the United States Supreme Court denied Syriani's petition for writ of certiorari, see Syriani v. North Carolina, 510 U.S. 948, 114 S.Ct. 392, 126 L.Ed.2d 341 (1993).

After his conviction, new counsel was appointed to represent Syriani in his efforts to obtain post-conviction relief. Syriani filed his motion for appropriate relief ("MAR") in the North Carolina Superior Court alleging, inter alia, that his trial counsel had provided constitutionally deficient legal assistance during the penalty phase of his trial by failing to investigate and present mitigating evidence of Syriani's cultural and social background in Palestine and Jordan and by failing to investigate and present mitigating evidence of mental illness. The state court granted Syriani's request for funds to hire an investigator and a translator and granted Syriani's request for an independent psychological and psychiatric examination.

At the conclusion of an evidentiary hearing, the state MAR court ruled that Syriani failed to prove that his counsel's representation during the penalty phase was deficient and, in any event, that Syriani had received "a fair trial that produced reliable results." J.A. 2425. Consequently, the state court denied Syriani relief, and the North Carolina Supreme Court denied review. See State v. Syriani, 350 N.C. 384, 536 S.E.2d 319 (1999).

Syriani then filed a petition for a writ of habeas corpus in the district court pursuant to 28 U.S.C.A. § 2254, again alleging ineffective assistance of counsel. The district court denied the petition, but granted Syriani's application for a certificate of appealability, see 28 U.S.C.A. § 2253 (West Supp.2004), as to Syriani's claim that he received ineffective assistance of counsel during the penalty phase of the trial. This appeal followed.

* * *

We begin with Syriani's claim that trial counsel unreasonably failed to investigate and present mitigating evidence of his cultural background and social history. Syriani asserts that, had counsel conducted a thorough investigation into the first thirty-seven years of his life in Palestine and Jordan, they would have uncovered a number of family members, friends, and co-workers in Jordan who were willing to testify about his difficult life before he immigrated to the United States.

Syriani did not testify at the state MAR hearing about his background. Rather, through summaries of interviews conducted by others of these family members and acquaintances, and through interviews that Syriani had with the "cultural expert" retained on his behalf for the MAR proceeding, Syriani presented a number of additional facts about his life in Palestine and Jordan.

According to this additional evidence, Syriani's home in Palestine was annexed to the Israeli state when Syriani was twelve years old. Although Syriani did not directly live in a war zone, the Israelis rounded up all the men in his village, including his father, and took them to concentration camps. A year or two later, his father was released to return home and the family moved to Jordan where one of his sisters already lived.

Syriani claims that his father was unable to work and that his father was laughed at by others in the community. No one respected his father in Jordan, not even his mother, who was cruel and indifferent to him. According to Syriani, "She used to hit him with her shoe just like my wife [Teresa] used to raise her hand against me in the last year of our marriage." J.A. 2300. The family was socially isolated as a result.

Syriani also suspected that his mother had extramarital affairs during these years, which "shamed him deeply." J.A. 2301. Syriani and his family lived in extreme poverty and his mother abused him physically and emotionally. According to Syriani, he wet the bed until he was fifteen years old, and his mother humiliated him for this problem.

In addition to the claim that counsel was ineffective for failing to uncover and present this additional personal history, Syriani asserts that trial counsel was ineffective for failing to retain a "cultural expert" to provide the jury with testimony about the fundamental differences between Arabic and Western culture, Syriani's difficulties with his cultural assimilation into this country, and how this difficulty affected his behavior on the night of the attack. As a result of these failures, Syriani asserts that the jury was "unable to understand the influence of culture on [his] ideas, thinking process, ideals and methods of communication." J.A. 1161. An expert in Arabic culture and history, Syriani claims, would have been able to explain and place in context this clash of American and Arab culture.

Post-conviction counsel took this step, retaining Dr. Akram Khater, Ph.D., a history professor from North Carolina State University who specializes in Arabic history and culture, to evaluate Syriani. Dr. Akram conducted interviews with Syriani and developed a social and family history, and presented this evidence to the state MAR court by affidavit. In particular, Dr. Akram provided more detailed information about the norms and traditions in the Arab culture and, in particular, the expectations and accepted behaviors of men and women in a traditional Arabic marriage, which Syriani strove to maintain with Teresa.

In death penalty cases, defense attorneys are required to undertake a reasonable investigation into possible mitigating evidence that can be presented during the penalty phase. See Wiggins, 539 U.S. at 521-23. "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691. "[T]here is a presumption that 'counsel's conduct falls within the wide range of reasonable professional assistance.' " Byram v. Ozmint, 339 F.3d 203, 209 (4th Cir.2003) (quoting Strickland, 466 U.S. at 689).

"[I]n deciding whether [counsel] exercised reasonable professional judgment," we "focus on whether the investigation supporting counsel's decision not to introduce mitigating evidence of [defendant's] background was itself reasonable." Wiggins, 539 U.S. at 522-23 (internal alteration and quotation marks omitted). "Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing. Nor does Strickland require defense counsel to present mitigating evidence at sentencing in every case." Wiggins, 539 U.S. at 533. Also, [t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. Strickland, 466 U.S. at 691.

We do not view counsel's investigation of Syriani's background and social history as constitutionally deficient. First, trial counsel's investigation into Syriani's background was not rendered unreasonable because they failed to locate and interview witnesses in the country of Jordan. Syriani was represented at trial by Mr. John Plumides, who acted as lead counsel, and Mr. Andrew Trakas, who was second chair counsel. Both were experienced trial counsel, particularly Mr. Plumides who had tried capital cases before. At the time of the murder, Syriani was not a recent immigrant to the United States. He and Teresa married in 1974, and he immigrated to this country within several weeks of the marriage. He learned to speak English, and had been living, working, and raising children in the United States for fifteen years when he attacked his wife. Thus, there was no reason for counsel to believe that he would be unable to present a competent mitigation case without traveling to Palestine and Jordan, or sending an investigator there, to interview family members, friends, and co-workers who had known Syriani more than a decade earlier.

Second, Syriani's counsel undertook reasonable efforts to investigate Syriani's cultural background. Mr. Trakas testified that he met with Syriani on a regular basis prior to trial, at least once or twice a week, to discuss various aspects of his case, including an explanation of the two-tier approach to a capital trial. Mr. Plumides also visited Syriani on a less frequent basis. Counsel testified that they had a good rapport with Syriani and no difficulty communicating with him.

Counsel also obtained and presented information from Syriani's sister Odeet, and interviewed Syriani's brother when he visited from Jordan. Finally, it is clear that Syriani's counsel understood and adequately presented the cultural aspects of the case, and successfully highlighted their mitigating value. In particular, Mr. Plumides demonstrated that he fully understood Syriani's marriage arrangement and the cultural differences between his life in Jordan and his life in the United States. [FN4] Counsel presented information about Syriani's unique cultural background to the jury, through the testimony of Syriani and Odeet. And, counsel referred to the differences between Arabic and American culture during his closing argument to the jury, including reminding the jury of Syriani's unique difficulty in coping with his wife's adoption of more American behaviors, such as driving, working outside the home, and wearing makeup and a more americanized wardrobe. [FN5]

FN4. Indeed, Mr. Plumides had a unique understanding of them. Mr. Plumides's parents had immigrated to the United States and were the product of an arranged marriage.

FN5. For example, counsel pointed out that Syriani had "lived as a very poor man and worked his way up to his own home," that "[h]e lived in one room in Jerusalem with all his family, all his brothers and sister[s], and his ill father and mother," that "he went to work when he was 12 years old," and that he supported his family and "created a very distinctive sense of pride in his life style." J.A. 895. He highlighted the fact that the changes in Teresa prompted Syriani's actions that night, that "[s]he became [a]mericanized" and "started wearing lipstick." J.A. 905. He reminded the jury that, "in their land and their customs, a woman's place was in the home," that "divorce in [Syriani's country] was five percent," "[t]hat the home was secure," and that "[t]hey didn't have divorce." J.A. 905. And, he highlighted the fact that Syriani "couldn't understand why his wife was leaving him, of all things." J.A. 906.

In sum, we cannot say that trial counsel's failure to travel to Jordan to interview family members and friends of Syriani from years before, or failure to retain a "cultural expert" to testify as to the effect his Arabic heritage might have had upon his actions during the marriage and on the night he inflicted the fatal wounds upon his wife, constituted ineffective assistance of counsel. Counsel interviewed Syriani and his sister living in the United States, as well as a sibling who visited from Jordan, and presented a great deal of evidence of Syriani's background to the jury. The information presented did not include the details contained in Dr. Khater's affidavit. However, there is no claim that Syriani, Odeet, or the visiting brother conveyed this background information to counsel when they were interviewed. And, it appears that the vast majority of this "undiscovered" evidence came from Syriani himself when he was interviewed by Dr. Akram in preparation for the MAR. In this regard, we note that, while Syriani did not testify at the MAR hearing, he presented no such history in his testimony during the guilt phase or penalty phase. Indeed, in at least one very important respect, Syriani's testimony at trial conflicts with the background offered through the summaries of other witnesses at the MAR hearing. FN6. Syriani did not relate that his father had been taken prisoner and ridiculed after his release, causing him to have to leave school at age twelve to work and support the family in Jordan. Rather, Syriani testified when he was twelve years old, his father developed cancer and could no longer work and, because Syriani was the oldest boy, he had to quit school to support the family.

However, even if we were to conclude that counsel should have done more in their investigation of this aspect of the case, we would affirm the denial of habeas relief because Syriani failed to demonstrate that there is a reasonable probability that the outcome of the penalty phase would have been different. Counsel presented evidence of Syriani's background and cultural differences and their effect upon his actions that night. The jury unanimously found, as a mitigating factor, that Syriani was raised in a foreign culture. Clearly, the jurors knew and understood the cultural issues involved in this case, and weighed them, but concluded that this did not outweigh the aggravating nature of the attack.

We turn now to Syriani's assertion that he received ineffective assistance of counsel because counsel failed to investigate and present mitigating evidence that he suffered from various mental health problems related to his background and his problems with cultural assimilation in this country. Prior to trial, counsel arranged for Syriani to undergo a competency examination at Dorothea Dix Hospital by Dr. James G. Groce.

Syriani was admitted on October 11, 1990, and remained there until his discharge on October 24, 1990. At the conclusion of the evaluation, Dr. Groce determined that Syriani suffered from an adjustment disorder with depressed mood, but noted no other psychiatric diagnoses. According to Dr. Groce, Syriani was "frustrated, jealous and depressed during the period of time that he was separated from his wife," but that "he would have been able to understand the nature and quality of his actions and the difference in right and wrong at the time in question." J.A. 2158.

Dr. Groce related that his evaluation and diagnosis were based on "interviews with the patient, the result of physical examination, laboratory studies, observation of his ward behavior during the time that he was in the hospital and information received from the patient's attorney, the clerk of court, the county jail, the patient's mother and an investigating detective." J.A. 2156. At no time did Dr. Groce contact trial counsel or request any additional information that may have been necessary to complete the evaluation.

Mr. Plumides testified that, after reviewing the report and independently researching the diagnosis, he made the decision not to request additional evaluations or call Dr. Groce as a witness. Given Dr. Groce's opinions regarding Syriani's ability to understand his actions that night, he believed that Dr. Groce's testimony regarding Syriani's depressed nature would hurt Syriani more than help him at trial.

Syriani contends that trial counsel was ineffective and that this decision not to do more was based on an incomplete investigation. Specifically, Syriani points to the fact that trial counsel did not contact Dr. Groce to discuss his findings, request the entirety of the file from Dorothea Dix Hospital, or provide Dr. Groce with any information concerning Syriani's cultural background. Syriani also points to the fact that trial counsel was aware that, shortly after Syriani was arrested, he told his son John that his "brain had blown up," told his daughter that he had "gone crazy," and told another individual that he "had lost control" at the time of the crime. J.A. 2114-15. Syriani asserts that competent counsel, armed with this information, would have requested additional information and evaluation from Dr. Groce and would have asked Dr. Groce to explore potential mitigating circumstances related to Syriani's mental condition, or obtained a separate psychological evaluation for purposes of uncovering mitigating evidence.

To demonstrate the mitigating evidence that such an investigation would have uncovered, Syriani points to the evaluation performed by Dr. Robert Rollins, who is also with Dorothea Dix Hospital, in preparation for the post-conviction hearing. Dr. Rollins reviewed the records of Dr. Groce, an affidavit prepared by Dr. Khater concerning Syriani's cultural background, and interviewed Syriani on two occasions. According to Dr. Rollins, Syriani had (1) mild symptoms of post traumatic stress disorder related to events in his childhood and to "the distressing feelings regarding the death of his wife," J.A.2010; (2) rigid beliefs and behavior which he characterized as a personality disorder that narrowed the range of choices available to Syriani when dealing with a situation and which affected his judgment and behavior control; and (3) an adjustment disorder or depression related to the disintegration of his family. In addition, Dr. Rollins noted that, while not separate diagnoses, Syriani was having relational problems and a cultural problem reflected by his view of the appropriate roles of husband and wife and his inability to cope with the changes in this relationship. According to Dr. Rollins, "Syriani felt very strongly that he was responsible for the behavior of his wife and children and he was actually quite ashamed that they didn't behave as he wished." J.A.2025.

Syriani argues that if trial counsel had requested a mental health evaluation for purposes of mitigation evidence, as opposed to just for a competency determination, they would have discovered these mental and emotional problems and, had they presented this evidence to the jury, there is a reasonable probability that the jury would not have sentenced Syriani to death.

The state MAR court rejected this claim of deficient performance, ruling that trial counsel had arranged to have Syriani examined by a mental health expert, evaluated that report along with the information provided by Syriani, and made the "reasonable strategic decision not to call Dr. Groce as a witness because they considered that he would do more harm to their case than good." J.A. 2374. Having received an opinion that Syriani suffered only from an " 'adjustment disorder with depressed mood' " and "having used their own professional judgment in evaluating defendant's statements to them and the evidence against defendant," the state MAR court concluded that "trial counsel had no obligation to shop around for additional opinions of mental health experts." J.A. 2374 (internal quotation marks omitted).

In addition, the state MAR court ruled that Syriani had failed to demonstrate that he was prejudiced by the alleged deficiencies of counsel. The district court ruled that trial counsel's representation was not deficient performance and, consequently, did not address the second prong of Strickland.

In his testimony, Dr. Groce made it clear that he was only retained to prepare a competency evaluation, and that he was at no time charged with the task of evaluating Syriani's mental health status for purposes of mitigation evidence. Had he been retained to perform the latter task, Dr. Groce testified, he would have ordered an additional battery of tests. Accordingly, we are not convinced that trial counsel's efforts to uncover this type of mitigating evidence was reasonable.

However, we need not decide whether the state court's determination to the contrary was an unreasonable application of the first prong of Strickland because we are satisfied that there is no reasonable probability that, had the jury been aware of the information presented by Dr. Rollins during the MAR proceeding, the result of Syriani's sentencing proceeding would have been different.

To establish a Sixth Amendment violation, Syriani was required to show that any failure on the part of his trial counsel prejudiced his defense. To establish this necessary prejudice, Syriani had to demonstrate " 'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " Wiggins, 539 U.S. at 534 (quoting Strickland, 466 U.S. at 694). In the death penalty context, to assess prejudice, the court "reweigh[s] the evidence in aggravation against the totality of the available mitigating evidence." Id. Prejudice requires "a reasonable probability that at least one juror would have struck a different balance." Id. at 537.

The aggravating evidence in this case was particularly compelling. While subject to a protective order arising from earlier incidents of domestic violence, Syriani blocked his wife and son's path to their home with his van, approached the vehicle, and chased Teresa as she attempted to get away from him by placing the car in reverse. He then opened the driver's door, and brutally stabbed his wife with a screwdriver in the head and face, while their ten-year-old son was in the passenger seat and over his attempts to protect his mother from this brutal onslaught.

The evidence revealed that the assault was prolonged and calculated. After John ran for help, he and his friend returned to help his mother, only to find Syriani still stabbing Teresa. According to Mr. Wilson, at one point Syriani crossed the street, returned to his van, fumbled with something, and then returned to Teresa's vehicle to continue the attack. And, Mr. O'Connor's testimony suggests that Syriani intended to go back a third time to resume his assault upon Teresa, but changed his mind when he saw O'Connor approaching Teresa's vehicle. As noted by the North Carolina Supreme Court, the pain and suffering to Teresa and her children was extraordinary:

[D]efendant stabbed his victim twenty-eight times. While many of the wounds were to [Teresa's] face and neck, several were to her arms and hands, suggesting that she tried to defend herself or ward off the blows. Further, one wound penetrated her brain three inches, causing hemorrhaging and swelling in the brain. Another blow fractured her jaw and several of her teeth. These blows did not cause immediate death.

The victim was able to communicate with her daughter Rose moments after the attack, and, as well, with the attending emergency room assistant upon her arrival at the hospital. Further, a tube was placed through her nose to her lungs to assist her breathing. She died twenty-eight days later as a result of the three-inch puncture wound to her brain, after having suffered stroke, infarct or paralysis.

Defendant correctly assesses the record as devoid of expert testimony that his victim suffered "inordinate" pain, but notwithstanding, the jury could reasonably infer from this evidence that the victim sustained and endured agonizing physical pain before becoming unconscious or comatose. Further, this evidence supports a finding that the killing was excessively brutal and conscienceless, pitiless and unnecessarily torturous....

Additionally, the evidence that defendant had abused his wife to the extent that she had left the house with her children; that he had threatened to kill her should she ever leave him; that only two weeks prior to the killing she had an ex parte domestic violence order served on defendant, requiring him to leave their home, and that defendant had tried to talk to her or the children, which overtures she had rebuffed, suggests that she feared her husband. The jury could reasonably infer that the victim, upon seeing defendant's van that night, being blocked by the van, observing his getting out and shaking his fist at her, and then attacking her as she tried to reverse the car, suffered and endured psychological torture or anxiety not only for herself but for her young son who was sitting beside her trying to stop his father. Syriani, 428 S.E.2d at 141-42 (citations omitted).

For his part, Syriani, after brutally assaulting his wife in the presence of his son, called his son a bastard as he left, drove to a nearby fire station to seek medical treatment for his minor injuries, requested that the police take him to the emergency room to be treated for his minor injuries when they arrived at the fire station to arrest him, and told the firemen and the emergency room physicians that Teresa had assaulted him. Weighed against this aggravating evidence, Syriani advances evidence that he was raised in poverty, suffered from mild post-traumatic stress disorder (caused by his upbringing or his murder of his wife or both), depression, and difficulty coping with the americanization of his wife and break-up of their marriage, which Dr. Rollins classifies as "personality disorders" affecting his ability to control his behavior.

The evidence presented at the MAR hearing was more extensive than that presented during the trial. But it is not so drastically different from that which the jury actually did consider and weigh as to lead us to conclude that the result might have been different. As a result of the efforts of defense counsel presented with a very difficult case, the jurors were made aware that Syriani was raised in a unique cultural setting and that he was subject to mental and emotional disturbances at the time of the murder.

Indeed, the jury unanimously found, as mitigating factors, that Syriani had been raised in a different culture and that he committed the murder while he was under the influence of mental or emotional disturbance. Seven members of the jury found, as a mitigating factor, that Syriani was aggravated by events following the issuance of the ex parte domestic order. And, several of the jurors found that Syriani understood the severity of his conduct, had demonstrated an ability to abide by lawful authority since his incarceration, had a history of good work habits, had a history of being a good family provider, and had been a person of good character or reputation in the community in which he lived.

The jury unanimously rejected, however, as mitigating circumstances that Syriani had no significant history of prior criminal activity, and that Syriani had demonstrated remorse for his actions. [FN7] FN7. Syriani denied having ever abused his children or his wife, and attempted to convey to the jury a scenario in which he "snapped" out of concern for his wife and children and fear that he was losing his family in the divorce. His children testified about their father's history of having a violent temper and his abuse of their mother and the children, as well as of the incident when the police took Teresa and the children to a battered women's shelter. Trial counsel introduced evidence that Syriani had no prior criminal convictions, either in his home country or in the United States. However, the State argued to the jury that they should reject this mitigating factor based upon the testimony that Syriani had been abusive to his family.

In short, Syriani's jurors were obviously aware of the cultural and social aspects underlying the murder, as well as the emotional and mental deficiencies associated with it, and unanimously found these factors to be mitigating in character. Yet, weighed against the aggravating evidence, they unanimously found that these mitigating circumstances, coupled with any others, did not outweigh the aggravating circumstances and recommended a sentence of death.

In light of the totality of the evidence presented at trial and in the state habeas proceeding, we conclude that Syriani has failed to demonstrate a reasonable probability that, but for counsel's failure to present the additional evidence of Syriani's cultural, social, and mental background, his sentence would have been different. Syriani, therefore, has failed to establish that he suffered prejudice from the alleged deficient conduct of counsel.

For the foregoing reasons, we affirm the district court's denial of Syriani's petition for writ of habeas corpus. AFFIRMED.