Volume 197 — North Carolina Court of Appeals Reports

<bold>1. Evidence — relevancy — board certification of doctor — not testifying</bold> <bold>as expert — other evidence</bold> <block_quote> The trial court did not abuse its discretion in a medical malpractice action by excluding evidence that defendant Crumley had failed the exam for board certification as a surgeon five times and was not board eligible at the time of the incident. It was reasonable for the trial court to conclude that defendant's board eligibility was not relevant to this action because Dr. Crumley testified only as a fact witness and not as an expert, while the board eligibility of the witnesses who testified as experts was relevant. Furthermore, there was no prejudice, given the similar testimony that was introduced through other witnesses.</block_quote><page_number>Page 350</page_number> <bold>2. Evidence — cross-examination — medical code of conduct —</bold> <bold>unauthenticated article</bold> <block_quote> The trial court did not abuse its discretion in a medical malpractice action by limiting cross-examination of a defendant about a code of conduct and by not allowing cross examination based on an unauthenticated article. The trial court conducted a voir dire and admitted the relevant portions of the code and was within its discretion in excluding documents that were not authenticated. Importantly, plaintiff made no showing of prejudice.</block_quote> <bold>3. Evidence</bold> — <bold>medical malpractice — prior lawsuit — knowledge of risk —</bold> <bold>unduly prejudicial</bold> <block_quote> The trial court was within its discretion in a medical malpractice case in excluding evidence of a prior lawsuit as unduly prejudicial to defendants, even taking as true plaintiff's argument that the evidence should have been admitted as to knowledge of the risk involved in postoperative care for this surgery.</block_quote> <bold>4. Discovery</bold> — <bold>opinions of experts — allegedly undisclosed — no abuse of</bold> <bold>discretion in admitting</bold> <block_quote> The trial court did not abuse its discretion in a medical malpractice action by admitting certain opinions from defendants' experts where plaintiff contended that the opinions were previously undisclosed. Considering all of the circumstances of discovery and the testimony at trial, the evidence was not unrelated, unduly prejudicial, or unfairly surprising to plaintiff.</block_quote> <bold>5. Evidence — medical malpractice — portions of deposition admitted —</bold> <bold>entire statement admitted on redirect</bold> <block_quote> The trial court did not err in a medical malpractice action by allowing defendants to introduce portions of a deposition transcript during cross-examination of plaintiff's witness. Although plaintiff contended that portions of the transcript were taken out of context, the court allowed the complete statement to be introduced by plaintiff on redirect. There is never a guarantee of timing when a witness is cross-examined.</block_quote>

<bold>1. Search and Seizure — warrantless search — motion to suppress evidence</bold> <bold>— implied consent</bold> <block_quote> The trial court did not err in a possession of a firearm by a convicted felon case by failing to suppress evidence seized during a warrantless search into the residence defendant shared with his<page_number>Page 708</page_number> mother because the search and seizure were authorized based on implied consent because: (1) once defendant's mother told police that defendant had a gun in the residence, and defendant confirmed the presence of a gun in the residence and where it could be located, the deputies were justified in entering the residence and seizing the weapon; (2) valid consent may be given by any one of the cohabitants of a premises even though no other cohabitant has consented; (3) based on the specific facts of this case, defendant and his mother, both cohabitants of the residence, gave consent through their words and actions for the officers to enter the residence and seize the weapon; and (4) the issue of whether the officers were entitled to conduct a protective sweep need not be addressed in light of the fact that implied consent existed to justify the search and seizure.</block_quote> <bold>2. Constitutional Law — right to counsel — waiver of counsel — pro se</bold> <bold>representation — failure to make inquiry required by N.C.G.S. §</bold> <bold><cross_reference>15A-1242</cross_reference></bold> <block_quote> The trial court erred in a possession of a firearm by a convicted felon case by allowing defendant to discharge his attorney and proceed pro se in the middle of trial when the trial court failed to make proper inquiries under N.C.G.S. § <cross_reference>15A-1242</cross_reference> before releasing defendant's counsel because: (1) the trial court made no inquiry as to defendant's understanding of his right to counsel, his understanding of the charge and possible punishment, or the consequences of proceeding without counsel; (2) while defendant made it clear he wanted to proceed on his own and keep counsel on standby to help him, the trial court had an obligation to conduct the inquiry prior to allowing defendant to proceed; and (3) the State acknowledged that it was unable to distinguish the facts of this case from the facts set forth in authority cited by defendant, and also acknowledged that defendant was entitled to a new trial based on the error committed.</block_quote>

<bold>Appeal and Error — appealability — pretrial confinement — credit for time</bold> <bold>served</bold> <block_quote> Although defendant contends the superior court erred in a forgery and uttering forged instruments case by failing to give defendant credit for the 56 days that she spent in pretrial confinement from 27 July 2008 through 17 September 2008 against the amount of time that she would have to serve as a result of the entry of judgment revoking her probation and activating her suspended sentences in File No. 07 CrS 50636, defendant's appeal is dismissed without prejudice to file a motion for an award of additional credit in the superior court under N.C.G.S. § <cross_reference>15-196.4</cross_reference> because: (1) the proper procedure to be followed by a defendant seeking to obtain credit for time served in pretrial confinement in addition to that awarded at the time of sentencing or the revocation of defendant's probation is for defendant to initially present his or her claim for additional credit to the trial court, with alleged errors in the trial court's determination subject to review in the appellate division following the trial court's decision by either direct appeal or <italic>certiorari</italic>; and (2) it did not appear from the record that defendant ever presented her claim for additional credit for time served in pretrial confinement to the trial court.</block_quote>

<bold>1. Child Support, Custody, and Visitation — child custody — change in</bold> <bold>circumstances</bold> <block_quote> The trial court did not err in a child custody case by concluding a change in circumstances had occurred since entry of the prior custody order even though plaintiff mother alleges the trial court failed to make any findings as to the circumstances existing when the prior order was entered because: (1) the trial court's undisputed findings noted four very significant events that occurred subsequent to entry of the prior custody order including that plaintiff had given birth to a child who was one year old in May 2008, plaintiff had separated from her second husband in December 2007, the child was in first grade in May 2008, and the child had been diagnosed with and had treatment recommended for ADHD on 20 July 2007; and (2) the four findings were sufficient to show that the trial court properly considered only events which occurred after entry of the prior custody order when it concluded that there was a change of circumstances.</block_quote> <bold>2. Child Support, Custody, and Visitation — child custody — effect of</bold> <bold>change in circumstances on child</bold> <block_quote> The trial court in a child custody case sufficiently considered the effect of the change in circumstances on the minor child because: (1) when the effects of the substantial changes in circumstances on the minor child are self-evident, there is no need for evidence directly linking the change to the effect on the child; and (2) the trial court's consideration of the effect of the changes in circumstances on the child is implicit in its three findings that<page_number>Page 747</page_number> the child needed ADHD medication and defendant father was willing to provide it, defendant was very attentive to the child's progress and behavior in school while the mother was less attentive, and defendant had been more consistent in treating the child's various recurring medical conditions.</block_quote>