Volume 172 — North Carolina Court of Appeals Reports

<bold>1. Jury — denial of challenge for cause — death</bold> <bold>penalty views</bold> <block_quote> The trial court did not abuse its discretion in a first-degree murder case by denying defendant's challenge for cause of a juror whose beliefs about the death penalty allegedly rendered her unqualified to sit on the jury, because the trial court carefully questioned the juror as to her views about the death penalty versus life imprisonment and determined that she was capable of following the law.</block_quote> <bold>2. Assault; Homicide — assault with deadly weapon</bold> <bold>inflicting serious injury — assault with deadly weapon</bold> <bold>— first-degree murder — motion to dismiss —</bold> <bold>sufficiency of evidence</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss the charges of double assault with a deadly weapon<page_number>Page 136</page_number> inflicting serious injury, assault with a deadly weapon, and first-degree murder, because: (1) the State demonstrated how defendant's hands and feet were used as deadly weapons in the attack of one of the victims who was undressed and facing downward in an unlit bedroom when he was hit from behind, dragged to the ground, and then kicked while facing downward; (2) the State provided substantial elements for the assault with a deadly weapon inflicting serious injury of another victim who was also undressed and lying in bed in an unlit bedroom where she was struck, was bleeding, and blacked out; (3) the State showed that defendant used his hands and a rubber mallet to hit one victim and that during this attack another victim was hit in the head while she was trying to stop the attack which caused her to get a deep laceration over her left eye that required stitches, antibiotics, and a tetanus shot; and (4) with regard to the first-degree murder, the State showed substantial evidence that defendant attacked the victim after the victim had been knocked to the ground by another, defendant retrieved a rubber mallet from his vehicle and beat the victim with it, defendant stole the shoes from the victim's feet and fled the scene, and defendant told others during his flight that he had killed the victim.</block_quote> <bold>3. Homicide — first-degree murder — sufficiency</bold> <bold>of indictment</bold> <block_quote> Although defendant contends the trial court erred by denying defendant's motion to dismiss the charge of first-degree murder because the indictment failed to allege every element of the offense, he concedes that our Supreme Court has ruled against his position.</block_quote> <bold>4. Sentencing — aggravating factors</bold> — <bold><italic>Blakely</italic></bold> <italic>error</italic> <block_quote> The trial court erred by finding aggravating factors and sentencing defendant in the aggravating range for two counts of assault with a deadly weapon inflicting serious injury, because: (1) the aggravating factors that defendant committed the offense while on pretrial release on another charge and that defendant joined with more than one other person in committing the offense and was not charged with committing conspiracy were not prior convictions, the factors were not admitted by defendant, and the facts for these aggravating factors were not presented to a jury and proved beyond a reasonable doubt; and (2) the aggravating factor that defendant had previously been adjudicated delinquent does not constitute a prior conviction pursuant to<page_number>Page 137</page_number> N.C.G.S. § <cross_reference>7B-2412</cross_reference> and was neither presented to a jury and proved beyond a reasonable doubt nor admitted by defendant.</block_quote>

<bold>1. Constitutional Law — right to confront witnesses —</bold> <bold>termination of parental rights — civil proceeding</bold> <block_quote> Termination of parental rights is a civil proceeding in which the <cross_reference>Sixth</cross_reference> Amendment is not applicable. Here, respondents' right to confront witnesses was not violated by introduction of statements of the child to social workers, a foster parent and psychologists.</block_quote> <bold>2. Discovery</bold> — <bold>funds for expert witness</bold> <bold>— motion for deposition — reasons insufficient</bold> <block_quote> The trial court did not abuse its discretion in a termination of parental rights hearing by denying respondent-father's motions for funds to employ an expert witness and for a telephone deposition of the foster parents. Respondent-father did not sufficiently identify the information sought or the material assistance it would provide.</block_quote> <bold>3. Termination of Parental Rights — order not timely</bold> <bold>— no prejudice</bold> <block_quote> Failure of the trial court to enter the order terminating respondents' parental rights within thirty days after the hearing was completed as required by N.C.G.S. §§ <cross_reference>7B-1109</cross_reference>(e) and <cross_reference>7B-1110</cross_reference>(a) was not per se prejudicial, and respondents failed to show they were prejudiced by the thirty-nine day delay in entry of the order.</block_quote><page_number>Page 301</page_number>

<bold>Arbitration and Mediation — motion to compel denied —</bold> <bold>claims not based on contract</bold> <block_quote> Defendants' motion to compel arbitration was properly denied where plaintiffs were not seeking any direct benefits from the contracts containing the relevant arbitration clause.</block_quote>

<bold>1. Witnesses — cross-examination — priest —</bold> <bold>testimony about confession</bold> <block_quote> A defendant charged with indecent liberties was not deprived of his right to a fair trial by not being able to adequately cross-examine a priest who testified about his general practice when hearing confessions from abuse victims, but did not testify about this victim's confession. Any error was rendered harmless by other overwhelming evidence of guilt.</block_quote><page_number>Page 331</page_number> <bold>2. Sentencing — aggravating factor</bold> — <bold><italic>Blakely</italic></bold> <bold>error — jury finding required</bold> <block_quote> Any fact (other than a prior conviction) that increases the penalty beyond the presumptive range must be submitted to a jury and proven beyond a reasonable doubt. A sentence in the aggravated range for indecent liberties based on a unilateral finding by the judge was remanded.</block_quote>

<bold>1. Administrative Law — judicial review — whole</bold> <bold>record test</bold> <block_quote> The whole record test was to be applied by the trial court where a petitioner contesting a State hiring decision argued that the Administrative Law Judge's findings were not supported by substantial evidence. The whole record test requires that the trial court take all evidence into account, including the evidence which supports and evidence which contradicts the agency's findings. If the agency's findings are not supported by substantial evidence, the court may make its own, but the whole record test is not a tool of judicial intrusion.</block_quote> <bold>2. Appeal and Error — assignments of error —</bold> <bold>too broadsided</bold> <block_quote> An assignment of error involving application of the whole record test and the court's substitution of its own judgment could not be reviewed where respondent's assignments of error were too broadsided. None were followed by citations to the record or transcript, none specified which findings were being challenged, and the Court of Appeals could not determine the findings respondent was challenging.</block_quote><page_number>Page 531</page_number> <bold>3. Administrative Law — judicial review —</bold> <bold>improper determination of credibility — no prejudice</bold> <block_quote> The improper substitution of the trial court's judgment about credibility for that of the Administrative Law Judge was not prejudicial where the finding had no bearing on the ultimate issue of whether respondent suffered age discrimination in not receiving a promotion at a state agency.</block_quote> <bold>4. Appeal and Error — preservation of issues —</bold> <bold>Administrative Law Judge's conclusion</bold> <block_quote> A state agency (petitioner) preserved appellate review of an Administrative Law Judge's conclusion that respondent established a prima facie case of age discrimination where it specifically excepted to many of the ALJ's conclusions, and, furthermore, drafted recommended conclusions of law that respondent had not made a prima facie case.</block_quote> <bold>5. Employer and Employee — age discrimination —</bold> <bold>nondiscrimination reason for hiring — "substantially</bold> <bold>younger" not defined</bold> <block_quote> A state agency (petitioner) established a legitimate, nondiscriminatory reason for not promoting an employee (respondent), and respondent did not show that this reason was a pretext for age discrimination. Although the trial court found that an inference of age discrimination did not arise because the successful applicant was not substantially younger than respondent, the issue of whether the selected applicant is substantially younger was not decided in this appeal.</block_quote>

<bold>1. Arbitration and Mediation — validity of clause —</bold> <bold>evidence consideration</bold> <block_quote> Arbitration was not erroneously compelled where defendants argued that they did not have the opportunity to present evidence of the invalidity of the arbitration clause, but the trial court expressly noted that it considered pleadings, evidence, and the contentions of counsel, defendants offered no suggestion of the evidence they were precluded from presenting, defendants make no argument about why the evidence before the court was not sufficient, and there was no infirmity in the evidence that would preclude the court from summarily determining that the contract had not been induced by fraud and the arbitration clause was enforceable.</block_quote> <bold>2. Arbitration and Mediation — contract clause</bold> <bold>— validity</bold> An arbitration clause was clear, unambiguous, and valid. <bold>3. Appeal and Error — citation of authority —</bold> <bold>required</bold> <block_quote> Arguments concerning the validity of an arbitration clause were unavailing where defendants failed to support any of their theories with citation to authority. Moreover, defendants' claims concerning the impartiality or suitability of the arbitrators lacked merit.</block_quote> <bold>4. Arbitration and Mediation — multiple arbitrator</bold> <bold>documents — document for judicial action</bold> <block_quote> The proper document upon which further judicial action should be taken in a disputed arbitration was the "arbitration award," one of several documents signed by the arbitrators and the case was remanded because the trial court did not confirm that award.</block_quote> <bold>5. Arbitration and Mediation — majority vote of</bold> <bold>arbitrators — sufficient under agreement</bold> <block_quote> In a disputed arbitration remanded on other grounds, a majority vote of the three arbitrators should have been sufficient under this arbitration clause.</block_quote><page_number>Page 559</page_number> <bold>6. Arbitration and Mediation — damages —</bold> <bold>multiple arbitrator documents — premises</bold> <block_quote> In an action remanded on other grounds, assignments of error concerning treble damages in an arbitration award depended upon an arbitrator's decision which was supplanted by an arbitrator's award. Moreover, defendant's assertion involving the amount of the award was based on a premise about the amount of its damages, which was for the arbitration panel to decide.</block_quote> <bold>7. Arbitration and Mediation — attorney fees —</bold> <bold>refused — no abuse of discretion</bold> <block_quote> In an action remanded on other grounds, there was no abuse of discretion by the trial court in refusing to award defendants attorney fees in a disputed arbitration, assuming that attorney fees were otherwise available to defendants, where it was defendants who resisted arbitration.</block_quote>

<bold>1. Constitutional Law — capacity to stand trial —</bold> <bold>failure to sua sponte grant competency hearing</bold> <block_quote> The trial court was not required to sua sponte grant defendant a competency hearing during defendant's January 2003 trial for first-degree felony murder and armed robbery, because: (1) evidence before the trial court was not so substantial as to indicate defendant was mentally incompetent when throughout the trial proceedings defendant acted in a manner exhibiting competence; (2) in the instant case, with the exception of the initial screening, defendant had no evaluations finding him to be incompetent to proceed to trial; (3) neither defendant's behavior nor demeanor implicated the necessity of a bona fide doubt inquiry even though defendant suffered from mental retardation and intellectual deficiencies throughout his life with intermittent mental illness when defendant had the capacity to comprehend his position, to understand the nature and object of the proceedings against him, to conduct his defense in a rational manner, and to assist his counsel; and (4) where, as here, defendant has been examined relative to his capacity to proceed and all evidence before the court indicates that he has that capacity, he is not denied due process by the trial court's failure to hold a competency hearing.</block_quote> <bold>2. Criminal Law — insanity — directed</bold> <bold>verdict</bold> <block_quote> The trial court did not err in a first-degree felony murder and armed robbery case by denying defendant's motion for a directed verdict on the issue of insanity because if evidence of insanity is offered by defendant, even if uncontroverted, the credibility of that testimony is for the jury and thus precludes the entry of a directed verdict for defendant on insanity.</block_quote> <bold>3. Robbery — armed — instruction —</bold> <bold>diminished capacity — specific intent</bold> <block_quote> The trial court did not err by denying defendant's request for a special instruction on diminished capacity for intent to commit armed robbery, because defendant failed to show he did not have the specific intent to permanently deprive the victim of his car.</block_quote><page_number>Page 674</page_number> <bold>4. Robbery — armed — heart attack — use</bold> <bold>of hands — lesser-included offense of common law</bold> <bold>robbery</bold> <block_quote> The evidence was insufficient to support defendant's conviction of armed robbery and the case is remanded for entry of conviction on the lesser-included offense of common law robbery, because: (1) autopsy reports indicated the victim died of a heart attack; (2) a forensic pathologist testified that the victim sustained minor cuts and abrasions prior to his death that were not life threatening, and that the victim's death was caused by a combination of the victim's weak heart and the stress caused by defendant stealing his car; and (3) defendant used only his hands to overtake the elderly victim and remove him from his car.</block_quote> <bold>5. Homicide — felony murder — underlying felony</bold> <bold>merges with felony murder conviction</bold> <block_quote> The trial court erred in a first-degree felony murder case by failing to arrest judgment on the underlying armed robbery conviction, because: (1) the underlying offense merged with the felony murder conviction; and (2) the Court of Appeals' decision to reverse and remand the conviction with instructions to the trial court to impose a verdict as to common law robbery means the judgment is arrested on the common law robbery conviction.</block_quote>

<bold>1. Appeal and Error — preservation of issues —</bold> <bold>failure to argue</bold> <block_quote> Defendant's assignments of error that were not argued in his brief are deemed abandoned pursuant to N.C. R. App. P. 28(b)(6).</block_quote> <bold>2. Evidence — expert opinion testimony —</bold> <bold>injuries not an accident</bold> <block_quote> The trial court did not err in a first-degree murder case by denying defendant's motion to exclude testimony from medical experts that the minor child's head injuries could not have been the result of an accident, because: (1) a medical expert may testify that the wounds presented are inconsistent with accidental origin; and (2) both experts based their opinions upon their years of experience as pathologists during which they performed and consulted on numerous autopsies.</block_quote><page_number>Page 735</page_number> <bold>3. Evidence — character — peacefulness</bold> <block_quote> The trial court did not err in a first-degree murder case by limiting testimony regarding defendant's interaction with other children where defendant attempted to show specific acts of nonviolence toward other children, because: (1) although defendant's allegedly peaceable character was pertinent to the charge of first-degree murder, neither defendant's character nor a trait of his character was an essential element of the charge or defendant's defense; and (2) elicitation of evidence regarding defendant's character during direct testimony must have been accomplished via opinion or reputation testimony rather than specific instance testimony.</block_quote> <bold>4. Homicide — inference of malice — blows to</bold> <bold>child's head</bold> <block_quote> The trial court did not err by instructing the jury in a homicide case that "malice may be inferred from evidence that the victim's death was done by an attack by hand alone without the use of other weapons, where the attack was made by a mature man upon a defenseless infant" where the evidence at trial tended to show that defendant was a twenty-eight-year-old male and the victim was a three-year-old child who was suffering from a broken collarbone, and that the child received multiple traumatic blows to the head which were intentionally inflicted while the child was in defendant's care.</block_quote> <bold>5. Sentencing — aggravating factors not submitted to</bold> <bold>jury</bold> — <bold><italic>Blakely</italic></bold> <bold>error</bold> <block_quote> The trial court erred by sentencing defendant for second-degree murder in the aggravated range because: (1) the aggravating factors that the victim of the crime was very young, that defendant took advantage of a position of trust or confidence to commit the offense, and that defendant was absent without leave from the United States Army at the time of the offense were not submitted to the jury; and (2) harmless error analysis cannot be conducted on <italic>Blakely</italic> Sixth Amendment violations.</block_quote>