Volume 303 — North Carolina Reports

1. Criminal Law 87 — witness's unresponsive answer — admissibility There was no merit to defendant's contention in a second degree murder case that the trial court erred in allowing a witness to testify that, when he first observed the fight in question, the homicide victim<page_number>Page 156</page_number> was trying to fight off defendant's brother, since the witness was merely describing what he saw when he first observed the fight and was not asserting that defendant's brother was the aggressor; and even if the witness's answer was unresponsive, it was nevertheless admissible, since it did not produce irrelevant, incompetent, or otherwise inadmissible information. 2. Criminal Law 87.1 leading question In a second degree murder case where defendant contended that he spent the entire evening of the crime in the company of his girlfriend, the trial court did not err in sustaining the State's objection to defense counsel's question asked of the girlfriend, "Was it humanly possible for [the defendant] to have been in a fight that night without your knowing it or seeing it?" since the question suggested the desired response and was therefore leading. 3. Criminal Law 117 — instruction limiting consideration of evidence Where a witness's statements were hearsay and were admissible only for the purpose of impeachment or corroboration, the trial court did not err in instructing the jury that the witness's testimony should be considered by them only as it related to her credibility as a witness. 4. Homicide 21.7 — second degree murder — sufficiency of evidence In a second degree murder case where the victim died from stab wounds, and the knife used in the stabbing was not introduced into evidence nor was there testimony as to its size or the length of the blade, the manner in which the victim was stabbed and the penetration of the knife into the heart and lungs were sufficient evidence of use of a deadly weapon and of malice to withstand a motion for nonsuit.

1. Constitutional Law 43; Criminal Law 57 — gunshot residue test — no right to counsel — evidence of refusal to take test The administration of a gunshot residue test is not a critical stage of the criminal proceedings to which the constitutional right to counsel attaches, and defendant's right to counsel was not violated by the admission of evidence that she refused to submit to a gunshot residue test until she talked with her attorney. Sixth and Fourteenth Amendments to the U.S. Constitution; Article I, 23 of the N.C. Constitution. 2. Constitutional Law 28; Criminal Law 57 — evidence of refusal to take gunshot residue test — no denial of due process The admission of evidence that defendant, after having been given the Miranda warnings, refused to take a gunshot residue test until she talked with her attorney did not violate defendant's right to due process since no constitutional right to counsel was involved and since no governmental action induced defendant to believe she had a constitutional right to have counsel present during the test.

Army and Navy 1; Divorce and Alimony 24.5 — order to increase child support — motion to stay hearing pursuant to Soldiers' and Sailors' Civil Relief Act — reconsideration required Orders of the trial court increasing the amount of child support, ordering defendant's arrest, and garnishing defendant's earnings are vacated, and the matter is remanded for a new hearing on plaintiff's motion in the cause for increased child support and reasonable counsel<page_number>Page 308</page_number> fees so that defendant, who was stationed with the U.S. Navy in Hawaii and who attempted to obtain a stay of the proceedings under the Soldiers' and Sailors' Civil Relief Act of 1940, may be given proper notice and may be afforded a reasonable opportunity to be heard.

1. Negligence 52.1, 53.8 — plaintiff as invitee — duty of care owed by proprietor Plaintiff was an invitee on defendant's premises because her purpose for entering defendant's store was to purchase goods, and defendant proprietor owed its invitees the legal duty to maintain its aisles and passageways in such condition as a reasonably careful and prudent person would deem sufficient to protect its patrons while exercising ordinary care for their own safety. 2. Negligence 57.5 — store keeper — failure to maintain premises in safe condition — sufficiency of evidence Evidence was sufficient to be submitted to the jury on the issue of defendant's negligence in plaintiffs action to recover for injuries sustained in its store where the evidence tended to show that defendant created an unsafe condition in its store by placing a platform at the end of a crowded aisle so that one corner of the pallet protruded three to six inches into the aisle; the pallet was raised about four inches from the floor and the plywood top overhung the base by three or four inches; there was no kickboard to prevent plaintiff's foot from catching underneath the corner of the platform; the edges of the platform were not painted and were not readily distinguishable from the color of the floor; lighting in the store was poor and the areas at the edges of<page_number>Page 463</page_number> the aisles shadowy; and defendant placed a display upon the platform and items along the aisle which were designed and intended to draw the customer's attention upward and away from the floor. 3. Negligence 58 — customer's failure to look at floor — no contributory negligence as matter of law In an action by plaintiff to recover for injuries sustained when she tripped over a platform in the aisle of defendant's store, the trial court erred in entering judgment n.o.v. for defendant on the ground that the evidence showed that plaintiff was contributorily negligent as a matter of law, since plaintiff offered evidence that the extension of the platform into the aisle was not obvious due to poor lighting and lack of contrast between the platform and the floor; there was evidence that the display and the placing of impulse items along the aisle were intended to attract and keep the customer's attention at eye level; such evidence was sufficient to permit the inference that the corner of the pallet would not have been obvious to one exercising ordinary care; and it could not be concluded as a matter of law that a customer was contributorily negligent in not looking down at the floor. 4. Negligence 58.1 — action by invitee — instructions proper In an action by plaintiff to recover for injuries sustained when she tripped over a platform in defendant's aisle, the trial court's instruction that "a customer is not contributorily negligent where the only way he or she could protect theirself [sic] would be to focus their attention towards the floor which a customer is not required to do" did not leave the jury with the impression that plaintiff was not under a duty to see what was obvious; rather, the trial court properly told the jury that plaintiff had a duty to see what the ordinary prudent person would have seen even though plaintiff was not required to focus her attention on the floor. 5. Evidence 50 — expert medical opinion — admissibility There was no merit to defendant's argument that, because medical evidence concerned plaintiffs condition some thirteen months prior to trial, it was inadmissible or that an expert medical witness could give his opinion only as to plaintiffs condition at the time of trial and must base his opinion on personal knowledge of plaintiff's then existing condition, since the expert witness in this case testified as to his present opinion, not as to an opinion he had held at an earlier time, and, while his opinions were based on prior examination of the plaintiff, the expert witness testified that plaintiffs condition was permanent and his opinion was thus final.

1. Negligence 52.1 — relative cutting trees — invitee Plaintiff, who sustained injuries during a tree cutting accident on his brother-in-law's property, was an invitee of defendants where he was on their property by express invitation; he entered the rental property of defendants to cut trees; and this service was of direct and substantial benefit to defendants in maintaining and improving their rental property. 2. Negligence 57.10 — tree cutting accident — negligence and contributory negligence as jury questions In an action to recover for injuries sustained by plaintiff in a tree cutting accident, the trial court erred in directing verdict for defendants on the ground that the evidence failed to establish actionable negligence on the part of defendants and, in the alternative, that the evidence showed contributory negligence as a matter of law, since defendants owed plaintiff, as an invitee, a duty of ordinary care to maintain their premises in a safe condition and to warn of hidden dangers that had been or could have been discovered by reasonable inspection; the evidence raised a question for the jury as to whether the male defendant negligently failed to warn plaintiff of the hidden danger in the rigging of a rope to a tree which was being felled; a question was raised for the jury as to whether plaintiff knew or should have known that a rope, a part of which was slack and lying on the ground, was tied to a third tree in such a manner that his body would be catapulted skyward when the falling section took up the slack; and a jury question was raised as to whether plaintiff was experienced in cutting trees, whether the attachment of the rope to a third tree was visible, and whether plaintiffs actions were reasonable and prudent under the circumstances or whether his actions constituted contributory negligence.

1. Criminal Law 106.2 — circumstantial evidence — sufficiency to withstand motion for nonsuit When the State relies on circumstantial evidence to establish defendant's guilt, such evidence is not required to exclude every reasonable hypothesis except that of guilt to withstand a motion for nonsuit; rather, the evidence, whether direct, circumstantial, or both, is sufficient to withstand a motion to dismiss if there is evidence which tends to prove the fact in issue or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction and not merely such as raises a suspicion or conjecture. 2. Homicide 4.4 — intent to kill While a specific intent to kill is an essential element of first degree murder, it is also a necessary constituent of the elements of premeditation and deliberation, and proof of premeditation and deliberation thus is also proof of intent to kill. 3. Homicide 18 — proof of premeditation and deliberation Some of the circumstances which give rise to an inference of premeditation and deliberation are ill will or previous difficulty between the parties, the want of provocation on the part of the deceased, the conduct of defendant before and after the killing and whether the killing was done in a brutal and VICIOUS manner. 4. Homicide 21.5 — premeditation and deliberation and intent to kill — sufficiency of evidence The State's evidence of premeditation and deliberation and intent to kill was sufficient to support defendant's conviction of first degree murder where it tended to show that defendant had threatened the victim's life on at least two occasions within a few days prior to the shooting of the victim and on one such occasion was armed with a pistol; immediately after the shooting defendant flagged down a prosecution witness to tell her he had just shot the victim; and the day after the shooting defendant told another prosecution witness that he, or rather the bullet, had killed the deceased over a money matter. 5. Criminal Law 113.9 — misstatement of evidence — failure to object at trial Defendant waived his right to challenge the trial court's misstatement of evidence that defendant had been seen with a pistol while with deceased at her mother's home by failing to bring the misstatement to the judge's attention at trial; furthermore, defendant was not prejudiced by the misstatement where a witness testified that defendant was armed with a pistol when he threatened at a motel room to kill the deceased and where the trial judge told the members of the jury to use their own recollection of the evidence and not his summary in their deliberations.<page_number>Page 501</page_number>

1. Criminal Law 92.1 — two defendants charged with same crime — consolidation proper The trial court did not err in granting the State's motion to consolidate defendants' cases for trial where each defendant was charged with having committed the same offense at the same time; neither defendant acted at trial in such a way as to incriminate the other and their defenses were not antagonistic; and while the State on occasion presented evidence that was competent against only one defendant, the trial court proceeded at those times to instruct the jury that such evidence was competent against only a particular defendant. 2. Criminal Law 162.5 — witness's testimony — failure to request limiting instructions In a prosecution of defendants for murder committed during the perpetration of a robbery, defendants were not prejudiced by the admission of testimony by a radio dispatcher, since the trial judge instructed the jury that it was not to consider the testimony of the dispatcher against one defendant, and the other defendant made a series of general objections to the dispatcher's testimony but at no time requested a special instruction which would limit the jury's consideration of the evidence. 3. Arrest and Bail 3.1; Searches and Seizures 10 — warrantless search and arrest — probable cause There was adequate justification for officers to stop defendants as they walked along the road and to conduct a limited search of defendants, and there was probable cause to arrest defendants where defendants were walking along a road at an unusual hour for persons to be going about their business; the officer who directed defendants to stop knew that a homicide had been committed within a few hundred feet and within little more than the preceding half hour; after defendants were stopped, an officer asked them to identify themselves, and one defendant gave a name different from that which he had given officers only a few minutes earlier; one officer noticed a bulge in the left front pocket of one defendant's pants; the officer also observed defendant placing his hand in the pocket; thinking that the bulge was a weapon, the officer grabbed defendant's hand and pulled it out of the pocket; the officer then reached into the pocket and retrieved a pill bottle which bore decedent's name; officers had observed defendants at decedent's home; defendants were observed going back into the dwelling where the body was subsequently found; and defendants were disheveled and there were stains upon their clothing which appeared to he blood.<page_number>Page 552</page_number> 4. Criminal Law 99.1 — no expression of opinion by judge The trial judge did not express an opinion as to defendants' guilt by his questions of witnesses, which tended to clarify unclear and confusing testimony, by his comments to counsel, which were straight-forward and were not demeaning, insulting or patronizing, or by his arranging of the evidence before the jury in his charge; moreover, the trial court did not express an opinion by spending more time in summarizing the evidence for the State, and the trial court gave equal stress to the contentions of the State and the defendants. 5. Homicide 25.1 — felony murder — instructions on burglary proper The trial court did not err by submitting burglary to the jury as the underlying felony for first degree murder on the theory of felony murder where the evidence tended to show that at 1:16 a.m. a caller purporting to be decedent called the sheriffs department and reported that he had been robbed by Bobby Swink; the dispatcher attempted to call back but the line was constantly busy; investigating officers who discovered decedent's body found one of the telephones in the house off the hook and the other telephone had its cord broken off; defendants were at the scene of the homicide when the first officer arrived at the scene, and they left shorty thereafter; and the State's evidence therefore tended to show that, while the homicide was not committed to overcome resistance or consummate the crime of burglary, it was committed to silence the decedent and thereby prevent him from identifying defendants. 6. Homicide 30 — felony murder — failure to instruct on lesser offenses Where defendants were charged with first degree murder and the evidence tended to show that defendants killed decedent in the perpetration of the underlying felony of burglary, but there was no evidence that decedent was killed other than in the course of the commission of burglary, the trial court was not required to submit lesser included offenses of second degree murder and voluntary manslaughter to the jury. 7. Constitutional Law 30 — names of State's witnesses — no pretrial discovery A defendant in a criminal case is not entitled to a list of the State's witnesses who are to testify against him. 8. Homicide 25 — felony murder — lesser offenses of underlying felony — instruction not required Where defendants were charged with first degree murder under the felony murder doctrine, the underlaying felony became part of the first degree murder charge, and further prosecution for the underlying felony was prohibited; therefore, the trial court was not required to instruct the jury as to the lesser included offenses of the underlying felony. 9. Criminal Law 69 — telephone conversation — identity of caller — res gestae — business entry The trial court in a first degree murder case did not err in admitting evidence of a telephone conversation between a sheriffs department dispatcher and a person identifying himself as decedent where the identity of the caller was sufficiently established by the conversation itself and by testimony of decedent's daughter and granddaughter that the voice on the tape of the conversation was<page_number>Page 553</page_number> that of decedent, and though the content of the telephone conversation was hearsay, it was nevertheless admissible as part of the res gestae, and the transcript of the tape recording of the phone call was admissible under the business records exception to the hearsay rule. 10. Criminal Law 73.3 — statements showing state of mind — admissibility The trial court in a first degree murder case did not err in allowing several of the State's witnesses to testify that decedent had often referred to defendant Rinck as "Bobby Swink," since the evidence was offered to show decedent's knowledge of defendant Rinck's identity as one of the persons who had rolled him and to explain why he referred to defendant as "Bobby Swink" during a telephone call which he made to the police department on the day that he was killed. 11. Constitutional Law 65 — telephone conversation — admissibility — right to confront witnesses not abridged In a first degree murder case there was no merit to defendant's contention that admission of a telephone conversation between deceased and a sheriff department dispatcher violated defendant's right to confront the witnesses against him, since decedent's death rendered him unavailable to testify at defendant's trial; evidence of the phone conversation fell into two well recognized exceptions to the hearsay rule; and the necessity of using the hearsay evidence outweighed the preference for in court confrontation of the witness.

1. Criminal Law 75.1 — unlawful arrest — subsequent incriminating statement — admissibility Defendant's incriminating in-custody statement was not inadmissible as the fruit of his original unlawful arrest or pursuant to G.S. <cross_reference>15A-974</cross_reference> where the statement was not the result of the original unlawful arrest but had its origin in and was the result of a subsequent lawful arrest for a murder to which the statement related. 2. Criminal Law 75.1 — in-custody statement — no violation of Posse Comitatus Act Defendant's incriminating in-custody statement was not inadmissible on the ground that it was obtained in violation of the Posse Comitatus Act, <cross_reference>18 U.S.C. § 1385</cross_reference>, since there was no violation of the Act where military officers did not execute civilian law but patrolled a city street for the purpose of removing military personnel from situations potentially involving breach of civil law and assisted the police department in returning apprehended military personnel to Fort Bragg, and since a violation of the Act would not call for invocation of the exclusionary rule. 3. Arrest and Bail 3; Criminal Law 169.2 — refusal to strike testimony — subsequent jury instructions In this prosecution for the murder of a military policeman, the trial court did not err in refusing to strike the testimony of a military policeman that defendant was placed in "protective custody" and in failing to instruct the jury at the time of objection that there was no basis in the law for one to be taken into protective custody where the court in six separate instances in its final charge instructed the jury that defendant's arrest was unlawful. 4. Criminal Law 102.11 — jury argument — personal belief by prosecutor — absence of prejudice In this prosecution for murder of a military policeman, defendant was not prejudiced by the prosecutor's ambiguous jury argument that "[w]e wouldn't be trying this case today if that [to beat up defendant] had been their intent," even if the statement is viewed as indicating a personal belief by the prosecutor as to defendant's guilt and the credibility of the testimony in violation of DR 7-106 (C), since there was no reasonable possibility of a different result had the statement not been uttered. 5. Criminal Law 102.3 — improper jury argument cured by instruction In this prosecution of defendant for the murder of a military policeman while defendant was in a holding cell, the prosecutor's improper jury argument which was not supported by the evidence that the victim and another military policeman entered the holding cell in order to protect persons therein confined was cured when the court instructed the jury to disregard such statement.<page_number>Page 609</page_number> 6. Criminal Law 113.1 — court's statement of evidence supported by testimony In this prosecution of defendant for the murder of a military policeman while defendant was in a holding cell, the testimony supported the trial court's instruction that there was evidence tending to show that defendant swung at the victim before being kicked by a second military policeman. 7. Homicide 28.3 — right to kill in self-defense — voluntarily entering fight by abusive language — instructions In this prosecution of defendant for the murder of a military policeman while defendant was in a holding cell after having been illegally arrested, the trial court's instruction, dealing with the right to kill in self-defense, that "one enters a fight voluntarily if he uses toward his opponent such abusive language which considering all of the circumstances is calculated and intended to bring on a fight, and if a person precipitates an altercation or a fight with the intent to provoke a deadly assault by the victim in order that he might kill him the subsequent killing of the victim in response to the attack is murder" was a correct statement of the law and was supported by the evidence in this case. 8. Homicide 28.3 — use of force against unlawful arrest — instructions In this prosecution of defendant for the murder of a military policeman while defendant was in a holding cell after he had been unlawfully arrested the trial court did not err in failing to charge the jury that regardless of the force used to effectuate the unlawful arrest, defendant was entitled to use deadly force if such was required to prevent the arrest or to free himself from unlawful confinement, since the victim of an unlawful arrest is not ipso facto entitled to kill or to use deadly force against the person attempting the arrest, and the court's instructions correctly explained to the jury the law regarding defendant's use of both non-deadly and deadly force in the context of an unlawful arrest.

1. Landlord and Tenant 14 — void lease — payment of rent — periodic tenancy When a tenant enters into possession under an invalid lease and tenders rent which is accepted by the landlord, a periodic tenancy is created, and the period of the tenancy is determined by the interval between rental payments. 2. Frauds, Statute of 1 — voidable lease — other claims not barred The Statute of Frauds bars only enforcement of an invalid contract but does not bar other claims which a party might have even though those claims arise in connection with the voidable lease; therefore, though plaintiffs action on a lease contract was barred by the Statute of Frauds, her other claims of nuisance, fraud and unfair trade practices based on defendant's operation of a plastics manufacturing plant near her beauty salon were not barred.