Volume 302 — North Carolina Reports

1. Constitutional Law 50 — speedy trial — factors considered Interrelated factors to be considered in determining whether an accused has been denied his constitutional right to a speedy trial are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right to a speedy trial; and (4) prejudice to defendant resulting from the delay. 2. Constitutional Law 52 — speedy trial — requirement that delay be arbitrary and oppressive Delays in violation of the constitutional right to a speedy trial are those undue delays which are arbitrary and oppressive or the result of deliberate prosecution efforts "to hamper the defense." 3. Constitutional Law 52 — speedy trial — burden of proof The burden is on an accused who asserts denial of his constitutional right to a speedy trial to show that the delay was due to the neglect or willfulness of the prosecution. 4. Constitutional Law 51 — eight month delay between arrest and trial — no denial of speedy trial A defendant charged with first degree burglary was not denied his constitutional right to a speedy trial by the delay of less than eight months from the time of his arrest to commencement of his trial where the record shows that a portion of the delay was due to defendant's motion for a mental examination to determine his competency to proceed; further delay was occasioned when defendant's counsel withdrew due to irreconcilable differences between counsel and defendant; a short delay on another occasion was caused by the inability of an officer to be present; and the case was calendared one or more times for trial but not reached due to the length of the calendar. 5. Criminal Law 66.5, 66.10, 66.15 — pretrial showup identification — absence of counsel — no likelihood of irreparable misidentification —<page_number>Page 90</page_number> in-court identification — independent origin The trial court properly admitted a burglary victim's in-court identification of defendant and evidence of the victim's identification of defendant in a one-man showup conducted at the victim's home within an hour after the crime and at a time when defendant was without counsel and had not waived counsel where the evidence on voir dire tended to show that when the victim awoke on the night in question a man was standing over her with his hand on her thigh; the man left through a window and the victim watched him crawl on his knees to the corner of her house where he stood up and then left; the victim was able to see the man's face when he stood up because there was a street light located in the back yard; the victim recognized the man as a person known to her as "Rayboy"; the victim told officers the man was wearing a light colored pants which were wet below the knees and had grass stains on the knees; defendant agreed voluntarily to accompany the officers to the victim's residence where he was identified by the victim; and defendant had not been arrested and was not in custody at the time he was identified at the victim's home, since (1) defendant was not entitled to counsel at the one-man showup because he was not in custody, (2) there is no reasonable possibility that the one-man showup could have led to a mistaken identification or contributed to defendant's conviction, and (3) the in-court identification of defendant by the victim was independent in origin and was not influenced by the showup. 6. Criminal Law 75.9 — volunteered in-custody statements In-custody statements volunteered by defendant after he had waived his constitutional rights and while he was being taken by automobile from the magistrate's office to the police station, "Man, you can't do this to me. That lady don't know what time I broke into her house," were properly admitted in defendant's trial for first degree burglary.

1. Searches and Seizures 34 — impoundment of vehicle — article in plain view — search pursuant to warrant Defendant cannot complain that officers chose to afford defendant the protection of impounding his vehicle and keeping it locked and under custody until a search warrant could be obtained rather than seizing a knife which was in plain view on the dashboard of the car at the time the car was impounded. 2. Criminal Law 87.1 — leading questions The trial judge did not abuse his discretion in permitting the district attorney to ask leading questions directed to the State's 15-year-old witness where the judge stated that he was allowing the leading questions because, in his opinion, the witness exhibited a lack of intelligence, appeared not to understand many of the words used by the district attorney and defense counsel, and had difficulty reading and comprehending a written statement he had given to police officers. 3. Criminal Law 89.2 — testimony admissible for corroboration Testimony by kidnapping and rape victim that a co-perpetrator of the offenses told her that defendant was putting a gun together, that he was crazy, and that he was going to kill the victim was properly admitted to corroborate prior testimony of another witness, although the co-perpetrator who allegedly made these statements never testified. 4. Criminal Law 87.3 — use of notes to refresh recollection An officer was properly allowed to use notes he took during his interview with a kidnapping and rape victim in order to refresh his recollection as to what she reported to him at that time, although the court had previously ruled that the notes could not be introduced into evidence or read to the jury. 5. Criminal Law 87 — State's calling of witness subpoenaed by defendant It was within the discretion of the trial judge to permit the State to call and question a witness subpoenaed by defendant. 6. Criminal Law 90 — State's impeachment of own witness The trial court did not abuse its discretion in permitting the State to impeach its own witness where it appears that the district attorney was surprised by the witness's testimony at the trial. 7. Criminal Law 89.2 — testimony corroborating personal observations In this prosecution for kidnapping and rape, an officer's testimony that a State's witness told him that he was riding with defendant in his car on the night of the alleged offenses when defendant stopped his car on the highway, offered a white girl a ride, and drove off when she refused was properly admitted to<page_number>Page 113</page_number> corroborate testimony by the State's witness concerning his personal observations and was not offered to impeach contrary testimony by another State's witness who was also riding in defendant's car on the night in question. 8. Criminal Law 113.9 — instructions — misstatment [misstatement] of date of offenses — absence of objection In a prosecution for kidnapping and rape, defendant waived objection to the court's misstatement of the date of the offenses as 20 October 1979 rather than the correct date of 21 October 1979 by failing to bring the misstatement to the court's attention in time to afford an opportunity for correction. Furthermore, defendant was not prejudiced by the misstatement considering the amount of testimony referring to the date of the offenses as 21 October 1979 and the trial judge's instruction that the jury should be guided by its own recollection of the evidence. 9. Kidnapping 1 — failure to instruct on kidnapping in second degree The existence of two ranges of sentences under G.S. <cross_reference>14-39</cross_reference> (b) did not create two separate degrees of the offense of kidnapping, and the trial court did not err in failing to instruct the jury on kidnapping in the second degree where G.S. <cross_reference>14-39</cross_reference> provided for only one offense of kidnapping at the time defendant was tried for and convicted of kidnapping. 10. Kidnapping 2 — life sentence for kidnapping Defendant's evidence was insufficient to meet his burden of proving the mitigating circumstances set forth in G.S. <cross_reference>14-39</cross_reference> (b) by a preponderance of the evidence, and the trial judge acted properly within his discretion in sentencing defendant to life imprisonment for kidnapping, where the State presented substantial evidence tending to show that the victim was kidnapped, repeatedly raped by defendant and three other males and released near her home, and defendant's evidence to the contrary consisted of his own testimony denying participation in the offenses charged and the testimony of several witnesses which tended to show an alibi for defendant at the time the crimes were committed. 11. Constitutional Law 79, 83; Criminal Law 138.1, 138.2 — concurrent sentences of life imprisonment — no cruel and unusual punishment — no denial of equal protection The imposition on defendant of two concurrent terms of life imprisonment for kidnapping and first degree rape did not constitute cruel and unusual punishment since the sentences were authorized by G.S. <cross_reference>14-39</cross_reference> and G.S. <cross_reference>14-21</cross_reference>. Furthermore, the sentences did not violate defendant's equal protection rights because other persons involved in the same offenses received lesser punishments.

1. Uniform Commercial Code 25 — action for breach of warranty — notice to seller — condition precedent The notice "within a reasonable time" required by G.S. <cross_reference>25-2-607</cross_reference> (3) (a) in an action for breach of warranty against the immediate seller is a condition precedent to recovery which must be pled and proved by plaintiff rather than an affirmative defense which must be raised by defendant seller. 2. Uniform Commercial Code 25 — explosion of flashcube — action for breach of warranty — seasonable notice to seller When the plaintiff in an action for breach of warranty is a lay consumer and notification is given to the defendant seller by the filing of an action within the period of the statute of limitations, and when the applicable policies behind the requirement of notice to the seller have been fulfilled, the plaintiff is entitled to go<page_number>Page 130</page_number> to the jury on the issue of seasonable notice to the seller. Therefore, in an action to recover on the theory of breach of warranty of merchantability for injuries resulting from the explosion of a flashcube sold to plaintiff by defendant, plaintiffs evidence was sufficient to go to the jury on the issue of whether plaintiff gave defendant notice "within a reasonable time" where it tended to show that the filing of this suit and accompanying service upon defendant some three years after the explosion was defendant's first notice that the flashcube was defective and had caused injury, that plaintiff was a lay consumer, and that the flashcube which exploded and the carton in which it was purchased were available as evidence at the trial.

Wills 61; Attorneys 7.5 — proceeding to determine spouse's right to dissent — attorney's fees properly taxed as costs against estate Where a surviving spouse is forced to engage in litigation to determine whether a right of dissent from the will of the deceased spouse exists, the discretionary power given the trial judge under G.S. <cross_reference>6-21</cross_reference> (2) includes the power to award attorney's fees for the surviving spouse when, in the opinion of the trial court, the proceeding was one of substantial merit.

Arson 3; Criminal Law 50.1 — origin of fire — opinion testimony improperly excluded In a prosecution of defendants for conspiring to burn a building and personal property therein, the trial court erred in excluding a witness's testimony as to his opinion that the char pattern on the floor of the second story of the building did not indicate the use of an accelerant and that there was only one origin to the fire, since defendant should have been allowed to offer expert testimony to counter that introduced and relied upon by the State; one defendant's testimony that the condition of the building remained unchanged from the time of the fire until the time the expert witness observed it laid an adequate foundation for the expert testimony; and there was a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial, as the impact of another expert witness's testimony was severely diminished when he admitted that he was not an arson expert and had not had training in the investigation of arson and arson detection.

1. Rape 2, 5 — second degree sexual offense — meaning of "any object" In defining a "sexual act" in G.S. <cross_reference>14-27.1</cross_reference> (4) as "the penetration, however slight, by any object into the genital or anal opening of another person's body," the legislature intended the words "any object" to embrace parts of the human body as well as inanimate or foreign objects. Therefore, the State's evidence was sufficient for the jury in a prosecution for second degree sexual offense where it tended to show that defendant penetrated the genital opening of the prosecutrix's body with his fingers. 2. Criminal Law 66, 89.3 — victim's prior identification of defendant — admissibility for corroboration In a prosecution for second degree sexual offense, the victim's testimony as to her previous identification of defendant at the probable cause hearing was competent to corroborate her in-court identification of defendant. 3. Criminal Law 50, 71 — testimony that slivers "appeared to be" glass — competency Testimony by a police officer that defendant had what appeared to be slivers of glass in his hair, in his pants and imbedded into his leather jacket at the time of his arrest did not violate the opinion rule of evidence since the slivers of glass could hardly be described otherwise, and the witness was in a better position than the jury to draw the conclusion as to whether the slivers were glass. 4. Arrest and Bail 3.5; Searches and Seizures 7 — probable cause for arrest<page_number>Page 343</page_number> — seizure of clothing incident to lawful arrest An officer had probable cause to arrest defendant for burglary and second degree sexual offense where the officer questioned defendant near the crime scene shortly after receiving a radio dispatch concerning the crimes but did not arrest him at that time; the officer then went to the victim's residence where he received a description of the burglar and his clothing; and realizing the description fit the appearance of defendant, the officer went looking for defendant, removed him from a passing vehicle, and took him to the police station. Therefore defendant's clothing was properly seized at the police station as an incident of his lawful arrest and was properly admitted into evidence at his trial.

1. Criminal Law 34.7 — defendant's commission of another crime — admissibility to show motive In a prosecution for murder of a person whom defendant met at a county fair, testimony that defendant sneaked into the fair without paying because he had no money was competent to show that defendant's motive for killing the victim was pecuniary gain where other evidence showed that later the night of the killing defendant had $60 to $80 in his possession. 2. Criminal Law 34 — evidence of defendant's commission of another crime — inapplicability of rule The rule prohibiting evidence that the accused has committed another distinct, independent or separate offense was not violated by a witness's testimony that he had been convicted of breaking and entering a warehouse and larceny of property therefrom and that defendant went to the warehouse with him on the night in question to drink wine, since there was no evidence that defendant participated in any criminal offense. 3. Criminal Law 114.2 — instructions — no expression of opinion on evidence The trial court in a murder prosecution did not express an opinion on the evidence in instructing the jury on a stick as a dangerous weapon where a witness had testified that defendant told him he killed a man and that "he beat him with a stick." 4. Criminal Law 130 — motion to set aside verdict — jurors leaving jury room during deliberations The trial court did not err in the denial of defendant's motion to set aside the verdict on the ground that five or six members of the jury left the jury room at various intervals during their deliberations and that the jurors remaining in the room continued to talk while others were absent where the evidence at a hearing on the motion showed that five or six jurors left the jury room at different intervals for the purpose of using a restroom but that no person was allowed to speak to a juror during the time the juror was out of the room and no juror was away from the room for more than two minutes, and where there was no evidence as to what was said by the remaining jurors while a juror was out of the jury room.

Receiving Stolen Goods 2 — receiving stolen property — possessing stolen property — no lesser offense Possessing stolen property in violation of G.S. <cross_reference>14-71.1</cross_reference> is not a lesser included offense of receiving stolen property in violation of G.S. <cross_reference>14-71</cross_reference>.

1. Criminal Law 92.4 — consolidation of charges against same defendant The trial court did not err in consolidating for trial a charge against defendant for felonious escape and charges against defendant for rape, kidnapping and larceny because evidence that defendant was serving a prison sentence for a prior conviction was allowed to be presented to the jury, since the events giving rise to the four charges against defendant all took place within a thirty minute time period and were so closely connected in time and place that they constituted separate segments of a continuing program of action by defendant, and since even if the escape charge had not been consolidated with the other charges, evidence that defendant had just escaped from a road crew consisting of prison inmates would have been relevant and admissible in defendant's trial on the other charges. 2. Criminal Law 91 — delay between arrest and trial — Speedy Trial Act Defendant's rights under the Speedy Trial Act were not violated by the lapse of more than 120 days between his arrest and trial where defendant was brought to trial only 77 days after he was indicted. 3. Criminal Law 34 — nonresponsive testimony disclosing prior crime — instruction by court — harmless error In a prosecution for rape, kidnapping and larceny, the trial court did not err in the denial of defendant's motion for a mistrial made because a witness's unresponsive answer to a question by defense counsel disclosed that defendant had committed a prior murder where the trial judge immediately instructed the jury not to consider the witness's statement, and where the evidence of defendant's guilt was overwhelming and uncontradicted.

1. Criminal Law 71 — shorthand statement of fact An officer's testimony that, when he stopped defendant's car and told defendant to step out of the car, defendant "was acting like he was trying to hide something" was competent as a shorthand statement of fact. 2. Criminal Law 128.2 — document in view of jury — motion for mistrial The trial court did not err in the denial of defendant's motion for mistrial made on the ground that the prosecutor placed on a table in full view of the jury a document containing a picture of defendant and what purported to be a criminal record of defendant in Florida where the trial court found that it was virtually impossible for any member of the jury to have read the writing on the document. 3. Criminal Law 33.3 — defendant's change of appearance between arrest and trial — irrelevancy — harmless error Testimony elicited from defendant on cross-examination that he had obtained a haircut and a shave during the interval between his arrest and trial, if irrelevant, was not prejudicial to defendant.

Criminal Law 7 — entrapment — denial of acts underlying offense charged Where a defendant denies the commission of the acts underlying the offense charged, he cannot raise the inconsistent defense of entrapment.