Volume 304 — North Carolina Reports

1. Taxation 25.11 — appeals from the Property Tax Commission G.S. <cross_reference>105-345.2</cross_reference> is the controlling judicial review statute for appeals from the Property Tax Commission. 2. Taxation 25.4 — ad valorem taxation — schedule of values — insufficient notice Notice of the 1977 schedules of values used by Wilkes County in appraising property for ad valorem property tax purposes was found insufficient to fulfill the due process requirement and to bar an attack against the revaluation schedules themselves where a public newspaper of general circulation in Wilkes County printed a notice pertaining to the revaluation only once, it was printed in the smallest possible print, was buried in a page containing two<page_number>Page 69</page_number> large pictures taken at a football game, three general news articles, a notice of public hearing and an advertisement for a local drive-in theater, and was printed some twenty-seven months before the effective date of the revaluation. Therefore, the actions of the Property Tax Commission in affirming the procedure employed by Wilkes County was in violation of constitutional provisions and made upon unlawful proceedings within the meaning of G.S. <cross_reference>105-345.2</cross_reference> (b)(1) and (3). 3. Taxation 25.4 — ad valorem taxation — on-site visits of property All property being reappraised by a county must receive an on-site visit and observation by the appraiser; therefore, where the record in an appeal by taxpayers concerning the revaluation of property in Wilkes County in 1977 indicated on-site visits of all the property in Wilkes County could not have been made, the revaluation of taxpayer's properties was illegally done by virtue of the county's failure to comply with G.S. <cross_reference>105-317</cross_reference> (b)(2). 4. Taxation 25.4 — county wide reappraisal of property — arbitrariness A decision to conduct a county wide reappraisal of property in a time of less than two months, and to complete it some twenty-seven months prior to its effective date, does not comport with the realities of the economic world and is plainly arbitrary under G.S. <cross_reference>105-317</cross_reference>. 5. Taxation 25.4 — ad valorem taxation — rebuttal of regularity — burden upon county When a taxpayer has rebutted the presumption of regularity in property valuation in favor of the county, the burden then shifts to the county to demonstrate to the Property Tax Commission that the values determined in the revaluation process were not substantially higher than that called for by the statutory formula, and the county must demonstrate the reasonableness of its valuation "by competent, material and substantial evidence." G.S. <cross_reference>105-345.2</cross_reference> (b)(5). 6. Taxation 25.4 — ad valorem taxation — use of comparable sales to establish present use valuation improper In order for a county to use sales of similarly used lands in establishing present use valuation, the county must demonstrate that the buyers and sellers involved in the comparable sales transactions had knowledge of the property's capability to produce income in its present use, that the present use is the highest and best use and that the purchaser intended to continue to use the property in its present use. 7. Taxation 25.4; 25.11 — findings of Property Tax Commission — not supported by evidence In a suit by landowners questioning the procedures used by Wilkes County authorities for establishing present use values for agricultural, horticultural and forest land for ad valorem property tax purposes, the findings and conclusions of the Property Tax Commission were found to be without support by competent, material and substantial evidence in view of the entire record as all evidence with respect to comparable sales was irrelevant and other testimony in support of the valuation was improperly based upon market value sales.<page_number>Page 70</page_number>

1. Criminal Law 92.4 — consolidation of offenses for trial — correctness of joinder determined at time of decision — defendant's motion for severance There was no abuse of discretion on the part of the trial court in consolidating the charges of felonious larceny of an automobile, conspiracy to commit armed robbery and robbery with a dangerous weapon where at the time the consolidation order was entered there appeared to be a sufficient transactional connection among the three offenses. Joinder is a decision which is made prior to trial and when subsequent developments at defendant's trial negated the existence of the transactional link, the joinder was not improper as a matter of law. The nature of the decision to join and its timing indicate that the correctness of the joinder must be determined as of the time of the trial court's decision and not with the benefit of hindsight. G.S. <cross_reference>15A-927</cross_reference> (a) provides a method by which an accused may protect against prejudice to his defense. Defendant should make a pretrial motion for severance, and if, during the presentation of the State's evidence,<page_number>Page 123</page_number> severance becomes justified on a ground not previously known to the defendant, the challenge is preserved by a motion for severance made before or at the close of the State's evidence. 2. Searches and Seizures 45 — objection to testimony concerning search — necessity of court to conduct a voir dire In a prosecution for armed robbery and automobile larceny where the defense attorneys made a series of objections to testimony concerning the fruits of a search of defendant's bedroom, the objections were overruled and later the trial judge conducted a voir dire hearing on the legality of the search, found the search unlawful and instructed the jury to disregard testimony concerning items found which linked defendant to the robbery, it was error for the trial court to refuse to excuse the jury and to refuse to conduct a voir dire on the legality of the search of defendant's bedroom immediately upon defendant's general objection to testimony concerning the fruits of that search. The evidence erroneously admitted, though withdrawn, was of a highly incriminating nature and the trial court's subsequent curative instruction was insufficient to avert any prejudice. 3. Criminal Law 76.4, 169.6 — refusal to permit excluded testimony to be placed in record — error The trial court's refusal to allow defense counsel to preserve in the record the defendant's answers on voir dire concerning evidence seized during the illegal search of defendant's bedroom constituted error which rendered the Court unable to determine the voluntariness of defendant's confession and, therefore, constituted prejudicial error.

1. Searches and Seizures 12 — temporary detention — reasonable suspicion of criminal activity — seizure within the ambit of Fourth Amendment The totality of circumstances afforded an officer reasonable grounds to believe criminal activity was afoot, and he therefore did not violate defendant's constitutional right by temporarily detaining defendant as a suspect where (1) the officer observed an occupied vehicle parked in the travel lane of a public road at 11:45 p.m. with its lights off and motor running, (2) the officer noticed defendant running from a closed business toward the car, and (3) defendant opened the car door and placed something on the back seat. 2. Searches and Seizures 33 — shotgun in "plain view" — seizure proper Since an officer had the authority to detain defendant temporarily, he violated no constitutional right in seizing a sawed-off shotgun, which constituted contraband under G.S. <cross_reference>14-288.8</cross_reference> (c)(3), which protruded from a brown paper bag in the back seat of a vehicle and was in plain view from a vantage point the officer had legally obtained.<page_number>Page 324</page_number> 3. Rape 6.1 — failure to instruct on second degree rape proper The trial court was not required to submit second degree rape and second degree sexual offense, even though defendant's witness testified he had defendant's shotgun while defendant was with the victim, as there was no evidence defendant used any force other than the shotgun and if the jury found defendant did not have the shotgun, it would have to find him not guilty on grounds the victim consented. G.S. <cross_reference>14-27.2</cross_reference> (a)(1)a, G.S. <cross_reference>14-27.3</cross_reference> (a)(1), G.S. <cross_reference>14-27.4</cross_reference> (a)(1)a, and G.S. <cross_reference>14-27.5</cross_reference> (a)(1). 4. Criminal Law 26.5; Kidnapping 1 — rape and kidnapping — no double jeopardy There is no violation of the double jeopardy clause in considering rape as part of the crime of kidnapping and as a crime in itself.

1. Burglary and Unlawful Breakings 7 — first degree burglary — intent to rape — instruction on non-felonious breaking and entering not required In this prosecution for first degree burglary and rape, testimony by the victim that, upon entering her bedroom, defendant immediately asked her, "Where is Johnny?" did not tend to show that defendant did not initially intend to commit the felony of rape when he illegally entered the victim's home and require the court to submit the lesser included offense of non-felonious breaking and entering since (1) when defendant's overall conduct throughout the continuous series of criminal events is considered, his question to the victim can be deemed as nothing more than a means to make certain that the victim was alone and (2) an individual having only innocent intentions would not break into another's home in the middle of the night and break through a locked bedroom door, while carrying an opened knife, just to find out where someone else might be. 2. Rape 6.1 — first degree rape — failure to submit lesser included offenses The trial court in a first degree rape case did not err in failing to submit the lesser included offenses of attempted rape and assault with a deadly weapon where the victim's testimony raised a conflict only as to how defendant initially accomplished penetration and the evidence plainly established penetration.<page_number>Page 350</page_number> 3. Criminal Law 102.1 — arguing facts of other cases to jury — objections sustained — instruction not necessary The district attorney's reference in his jury argument to the facts of a decided case for the purpose of explaining the law regarding the element of force in rape cases, if improper, was at most a minor transgression which was adequately cured by the trial court's immediate sustention of an objection thereto, and the trial court was not required to instruct the jury sua sponte to disregard such argument.

1. Constitutional Law 45 — indication of problem with counsel — no requirement of formal hearing It was not error for the trial judge to fail to conduct a hearing in accordance with G.S. <cross_reference>15A-1242</cross_reference> to determine whether defendant wished to represent himself after defendant stated to the court that he did not want a lawyer. Defendant's exchange with the trial judge indicated that he was confused by the technicalities of the jury voir dire and that he simply wanted to have the court go ahead and get it over with. There was no intimation that he was considering waiving his constitutional right to counsel in conducting his own defense. Had defendant clearly indicated a desire to have counsel removed and proceed pro se, then the trial judge should have made further inquiry pursuant to G.S. <cross_reference>15A-1242</cross_reference>. 2. Criminal Law 112.7 — insanity defense — instructions proper Defendant's contention that the trial court's references to the defense of insanity during the instructions to the jury on the elements of second degree murder and voluntary manslaughter were prejudicially complicated was without merit. The court properly charged the jury on the defense of insanity as a separate issue for their consideration and correctly charged as to the defendant's burden in proving the affirmative defense of insanity and the State's burden of proof concerning the offenses charged. 3. Homicide 30.3 — failure to instruct on involuntary manslaughter proper Defendant's statement that he thought the victim was reaching under the seat of a truck for a gun and "then the gun went off," when taken in context with his other testimony, including a statement that "when I pulled the trigger on the shotgun, he went down," and when taken in context with a written statement to the police on the night of the shooting in which defendant admitted that he pulled the trigger and shot the victim in the head, was insufficient evidence to raise an inference that the shooting was unintentional. Therefore, it was not error for the trial court to fail to instruct the jury on the offense of involuntary manslaughter. 4. Criminal Law 6 — failure to charge on defense of voluntary intoxication proper In a prosecution for second degree murder, defendant's evidence that on the evening of the shooting he drank a cup of rum and two cups of wine, that he usually did not drink because his doctor had told him, after an operation on his head, not to drink any liquor because it affects his mind, that one witness testified his mind was "coming and going," and that he heard "all kinds of things, noise" and "flipped out" was insufficient evidence of intoxication to require the trial judge to instruct the jury on the defense of voluntary intoxication.<page_number>Page 512</page_number>

Constitutional Law 5 — separation of powers — legislators on Environmental Management Commission — legislative act unconstitutional G.S. <cross_reference>143B-283</cross_reference> (d), increasing the membership of the Environmental Management Commission by providing two members of the N.C. House of Representatives, appointed by the Speaker of the House, and two members of the N.C. Senate, appointed by the President of the Senate, shall be members of the EMC, is unconstitutional as it violates the Separation of Powers Clause of the North Carolina Constitution. The principle of separation of powers is a cornerstone of our state and federal governments which can be discerned from early N.C. cases, all three versions of the N.C. Constitution, records with respect to the drafting and adoption of our first N.C. Constitution and of the federal constitution, and from the failure of various constitutional amendments. Decisions of sister states also demonstrate an adherence to the separation of powers principle. Therefore, as the duties of the EMC, G.S. <cross_reference>143B-282</cross_reference> et seq., are administrative or executive in character and have no relation to the function of the legislative branch of government, which is to make laws, the legislature cannot constitutionally, under Section 6 of Article I of the N.C. Constitution, create a special instrumentality of government to implement specific legislation and then retain some control over the process of implementation by appointing legislators to the governing body of the instrumentality. Section 1, Articles II, III and IV of the N.C. Constitution.

1. Attorney at Law 11; Constitutional Law 57 — disciplinary or disbarment proceedings — jury trials not guaranteed by the N.C. Constitution As the 1970 Constitution was clearly meant to be an editorial revision of the 1868 Constitution and as fundamental changes in the constitution were made only by separate amendment, Article I, 25 of the N.C. Constitution, which was only editorially revised, preserves intact the right to trial by jury in all cases where the prerogative existed at common law or by statute at the time the 1868 Constitution was adopted. The Legislature in 1969 had no intention of providing a constitutional right to jury trial for attorneys in disciplinary proceedings when it submitted Article I, 25 to the people. The legislators intended to leave such a specific matter as this for future consideration, and in 1975, the Legislature exercised its authority to deal with changing conditions and eliminated the jury trial of attorneys in disciplinary actions. G.S. <cross_reference>84-28</cross_reference>. 2. Attorneys at Law 11 — disciplinary hearings — appropriate standard for judicial review As Chapter 84 of the General Statutes, the chapter which provides for discipline of attorneys, provides for no "adequate procedure for judicial review," Article 4 of G.S. Chapter 150A is the controlling judicial review statute for appeals from decisions of the State Bar Disciplinary Hearing Commission. Therefore, the appropriate standard for review for such decisions is the "whole record" test as set out in the APA. G.S. 150A-51 (5).

1. Constitutional Law 56 — jurors in courtroom during arraignment of co-conspirators — right to impartial jury The trial judge did not contravene G.S. <cross_reference>15A-943</cross_reference> (a) and violate defendant's right to a trial by an impartial jury when he denied defendant's motion for mistrial because of the arraignment of two of his co-conspirators in the presence of prospective jurors from whom the jury for defendant's trial was chosen. 2. Constitutional Law 62 — arraignment of co-conspirators before prospective jurors — no bearing on challenges for cause Defendant's reliance on G.S. <cross_reference>15A-1212</cross_reference> (3), permitting challenges for cause where a juror participates "in criminal or civil proceedings involving a transaction which relates to the charge against the defendant," was misplaced in a case in which his co-conspirators were arraigned before prospective jurors. Nothing in the record showed prospective jurors ascertained any connection between defendant and his co-conspirators, and the record did not reveal whether defendant challenged any juror for cause.<page_number>Page 659</page_number> 3. Constitutional Law 56 — arraignment of co-conspirators before prospective jurors — no reading of pleadings to jury The arraignment of defendant's co-conspirators in the presence of prospective jurors was not violative of the provision in G.S. <cross_reference>15A-1213</cross_reference> providing that "[t]he judge may not read the pleadings to the jury." 4. Constitutional Law 60 — racial discrimination in selection of jury — failure to rebut regularity Where defendant failed to rebut the presumption of regularity in the trial judge's ruling that defendant was allowed a reasonable time and opportunity to inquire into and present evidence concerning any racial discrimination in the drawing or selection of the jury, his contention that the court erred in denying his motion to require the clerk to provide him with the racial makeup of the jury panel must fail. 5. Criminal Law 42; Homicide 20, 21.1 — cause of death stipulated — photographs and physical evidence not prejudicial Defendant's stipulation as to the victim's cause of death did not relieve the State of the burden to prove its entire case beyond a reasonable doubt so long as defendant maintained his plea of not guilty; therefore, admission of photographs, clothing and other physical evidence relating to the victim, the pistol and the bullets was not error. 6. Criminal Law 89.3 — prior consistent statement of co-conspirator — competent for corroborative purposes The trial court did not err in allowing a deputy sheriff and an S.B.I. agent to testify concerning statements made by a co-conspirator who was a witness for the State after charges against him were disposed of through plea bargaining. It is proper to allow a State investigator or deputy sheriff to testify to corroborating pretrial statements which a State's witness made to him. 7. Criminal Law 113.3 — limiting instruction on corroborative testimony — failure to request When there is no request for an instruction limiting the evidence for the purpose of corroboration at the time it is offered and the testimony is obviously corroborative rather than substantive, there is no ground for exception that the trial judge failed to instruct the jury in the final charge as to the nature of the evidence, unless his attention is called to the matter by a prayer for instruction. 8. Criminal Law 149.1 — court's refusal to submit aggravating circumstances — no right of appeal by State Under G.S. <cross_reference>15A-1445</cross_reference>, the State has no right to appeal the trial judge's refusal to submit any of the aggravating circumstances under G.S. <cross_reference>15A-2000</cross_reference> to the jury at the sentencing phase of defendant's trial.

1. Criminal Law 147 — motion for appropriate relief — insufficiency of materials to make determination As the materials before the Court were insufficient to determine if defendant's conviction was obtained in violation of the U.S. or<page_number>Page 710</page_number> N.C. Constitution under G.S. <cross_reference>15A-1415</cross_reference>, pursuant to G.S. <cross_reference>15A-1418</cross_reference> (b) the Court could remand the motion to the trial court; however, the Court, in this case, determined the better procedure to be to dismiss the motion. 2. Criminal Law 146.1 — errors not presented to Court of Appeals — not properly before Supreme Court Assignments of error not presented to the Court of Appeals are not properly presented to the supreme Court. App. Rule 16 (a).