Volume 158 — North Carolina Court of Appeals Reports

<bold>1. Search and Seizure — search 24 hours after arrest — not incident to</bold> <bold>arrest</bold> <block_quote> A search of defendant 24 hours after his arrest was not contemporaneous with the arrest and was thus not incident to the arrest. The permissibility of a warrantless search while defendant was in custody was not raised at the suppression hearing and was not addressed on appeal.</block_quote> <bold>2. Search and Seizure — affidavit supporting warrant — insufficient</bold> <block_quote> The trial court correctly concluded that the affidavit supporting a search warrant was insufficient, and did not err by granting defendant's motion to suppress, where the affidavit referred to a lengthy interview of defendant but did not contain the substance of the interview, and concluded that probable cause existed but did not relate particular facts supporting that belief.</block_quote> <bold>3. Search and Seizure — suppression — court's evaluation of</bold> <bold>circumstances — no findings</bold> <block_quote> The trial court did not err when suppressing a search under N.C.G.S. § <cross_reference>15A-974</cross_reference>(2) by not making findings of fact about its evaluation of the circumstances. That statute does not require a court to make findings with respect to its evaluation of the circumstances and the order granting the motion to suppress indicated that the court took all circumstances into account. The State presented no evidence to the contrary.</block_quote><page_number>Page 118</page_number> <bold>4. Search and Seizure — exclusionary rule — good faith exception — not</bold> <bold>applicable</bold> <block_quote> The "good faith" exception to the exclusionary rule was not applicable where a search was suppressed under North Carolina statutes rather than on federal constitutional grounds.</block_quote>

<bold>1. Pleadings — 12(b)(6) motion to dismiss — consideration of documents</bold> <bold>not attached to complaint — motion not converted to summary judgment</bold> <block_quote> A motion to dismiss for failure to state a claim was not converted into a motion for summary judgment where the court considered documents not attached to the complaint. Those documents were referred to in the complaint and formed the procedural basis for the complaint.</block_quote><page_number>Page 253</page_number> <bold>2. Employer and Employee — retaliatory discharge — time limit for claim</bold> <block_quote> The 180-day time limit for filing a Retaliatory Employment Discrimination Act claim with the North Carolina Department of Labor is mandatory even though there is no express statutory consequence for failing to file within the time limit.</block_quote> <bold>3. Statutes of Limitations and Repose — retaliatory discharge —</bold> <bold>time limits for filing</bold> <block_quote> There is no merit in the argument that the 3-year limitations period of N.C.G.S. § <cross_reference>1-52</cross_reference> should control the 180-day filing limit of the Retaliatory Employment Discrimination Act.</block_quote> <bold>4. Employer and Employee — retaliatory discharge — motion to amend —</bold> <bold>additional claim — responsive pleading not filed — futile motion</bold> <block_quote> The trial court properly denied plaintiff's motion to amend his complaint to assert an additional claim under the Retaliatory Employment Discrimination Act based on an alleged post-complaint incident of discrimination where the original claim was time-barred and plaintiff failed to file his additional claim with the N.C. Department of Labor before seeking to add it to his complaint so that allowance of the amendment would have been futile.</block_quote> <bold>5. Employer and Employee; Workers' Compensation — wrongful discharge —</bold> <bold>assertion of workers' compensation rights — amendment of complaint —</bold> <bold>responsive pleading not filed — motion not futile</bold> <block_quote> A plaintiff may state a claim for wrongful discharge in violation of public policy based upon an allegation that the dismissal resulted from an assertion of rights under the Workers' Compensation Act, and plaintiff was entitled to amend his complaint to add such a claim as a matter of right before defendants had filed a responsive pleading. The trial court could not properly deny as futile the motion to amend on the ground that plaintiff was a union employee who could only be dismissed for just cause rather than an at-will employee and thus could not sue in tort for wrongful discharge under <italic>Trexler v. Norfolk S. Ry. Co.</italic>, <cross_reference>145 N.C. App. 466</cross_reference>, where the terms of the purported collective bargaining agreement were not before the court.</block_quote><page_number>Page 254</page_number>

<bold>1. Jury — selection — peremptory challenges — Batson hearing —</bold> <bold>nondiscriminatory reasons</bold> <block_quote> Peremptory challenges were correctly allowed in an assault prosecution where the court permitted the prosecutor to explain the challenges without ruling on whether defendant had established a prima facie case; the prosecutor articulated credible, non-discriminatory reasons for the challenges which were both well-grounded in law and supported by fact; defendant did not offer any evidence of pretext other than the argument that the articulated reasons pertained equally well to other jurors who were not challenged; and the court considered this argument but concluded that none of the other jurors had the same combination of factors.</block_quote> <bold>2. Constitutional Law — double jeopardy — not raised at trial</bold> <block_quote> An assault defendant convicted of two assaults waived the question of whether double jeopardy was violated by not raising the issue at trial.</block_quote> <bold>3. Assault — one sequence of events — two counts</bold> <block_quote> The evidence was sufficient to establish two assaults, and the trial court properly denied defendant's motion to dismiss, where the assaults involved defendant and two different individuals, each with his own thought process and each using a different weapon, each assault was distinct in time and inflicted wounds in different locations, and the second assault occurred after the first had ceased and the victim had fallen to the floor.</block_quote>