Volume 308 — North Carolina Reports

1. Master and Servant 7.5; State 12 — employment discrimination — standards to be applied The claimant carries the initial burden of establishing a prima facie case of employment discrimination, and the burden then shifts to the employer to articulate some legitimate nondiscriminatory reason for the claimant's rejection or discharge. If a legitimate nondiscriminatory reason for rejection or discharge has been articulated, the claimant has the opportunity to show that the stated reason for rejection was, in fact, a pretext for discrimination. 2. Master and Servant 7.5; State 12 — employment discrimination — prima facie case — burden of producing rebutting evidence Once a prima facie case of employment discrimination is established, the employer has the burden of producing evidence to rebut the presumption of discrimination raised by the prima facie case. The employer's burden is satisfied if he simply explains what he has done or produces evidence of legitimate nondiscriminatory reasons.<page_number>Page 132</page_number> 3. Master and Servant 7.5; State 12 — employment discrimination — burden of proof In an employment discrimination action, the ultimate burden of persuading the trier of fact that defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. 4. Master and Servant 7.5; State 12 — employment discrimination — rebutting presumption of prima facie case To rebut the presumption of employment discrimination raised by a prima facie case, the employer must clearly explain by admissible evidence the nondiscriminatory reasons for the employee's rejection or discharge, and the explanation must be legally sufficient to support a judgment for the employer. 5. Master and Servant 7.5; State 12 — employment discrimination — rebuttal of prima facie case — showing reasons are pretext for discrimination When the employer explains the nondiscriminatory reasons for challenged employment action, the plaintiff is then given the opportunity to show that the employer's stated reasons are in fact a pretext for intentional discrimination, and plaintiff may rely on evidence offered to establish his prima facie case to carry his burden of proving pretext. 6. Master and Servant 7.5; State 12 — employment discrimination — no review of employer's business judgment The trier of fact is not at liberty to review the soundness or reasonableness of an employer's business judgment when it considers whether alleged disparate treatment is a pretext for employment discrimination, since the only relevant question, and the sole focus of the inquiry, is the employer's motivation. 7. Master and Servant 7.5; State 12 — discharge of black correctional officer — prima facie case of discrimination — rebuttal by employer Plaintiff, a black correctional officer at a youthful offender prison, established a prima facie case of employment discrimination because of race by showing that even though he and several white employees failed to make proper checks on <cross_reference>23-24</cross_reference> April 1979 to ensure the presence of two inmates who escaped, only he was discharged. However, defendant employer rebutted the prima facie case by testimony that plaintiff was discharged for his failure to make proper checks throughout his entire shift and his failure to report the condition of the inmates' cell and his inability to arouse them at breakfast before leaving work at the end of his shift, and by testimony that plaintiff's conduct constituted greater negligence than the conduct of the other employees. 8. Master and Servant 7.5; State 12 — employment discrimination action — errors by State Personnel Commission In an employment discrimination suit brought by a discharged black correctional officer pursuant to G.S. <cross_reference>126-36</cross_reference> and G.S. <cross_reference>143-422.2</cross_reference>, the State Personnel Commission erred by placing an improper burden of proof upon defendant employer to show an absence of discrimination,<page_number>Page 133</page_number> in reviewing the correctness of defendant employer's business judgment, and in failing to resolve the ultimate question of whether plaintiff was the victim of intentional discrimination.

1. Arson 4.2; Criminal Law 106.4 — burning of personal property — insufficient evidence independent of confession The State's evidence was insufficient for the jury in a prosecution for burning personal property, a mobile home, where the State failed to establish, independent of defendant's confession, that the fire had a criminal origin. 2. Criminal Law 124.5 — verdict not inconsistent It was not inconsistent for the jury to determine that the defendant broke into and entered a mobile home with the intent to commit larceny and then to find defendant not guilty of larceny.

1. Criminal Law 158 — record on appeal — duty of appellant — conclusiveness It is the duty of the appellant to see that the record on appeal is properly made up and transmitted. Moreover, the record imports verity and the court is bound on appeal by the record as certified.<page_number>Page 289</page_number> 2. Criminal Law 91 — statutory speedy trial — exclusion of time pending motion for change of venue The period of time between the filing of defendant's motion for a change of venue and its determination 115 days later was properly excluded in computing the statutory speedy trial period. G.S. <cross_reference>15A-701</cross_reference> (a1) and (b). 3. Criminal Law 15.1 — pretrial publicity — denial of change of venue The trial court did not abuse its discretion in the denial of defendant's motion for a change of venue because of pretrial publicity where defendant relied on two newspaper articles and one television newscast which occurred some six months prior to the trial and which were substantially factual and not inflammatory, and where there was no showing that any juror had even read the newspaper articles or heard the broadcast. G.S. <cross_reference>15A-957</cross_reference>. 4. Criminal Law 42.6 — rifle bolt — no necessity to show chain of custody A rifle bolt found near a murder victim's body was not inadmissible because the State failed to show a proper chain of custody where the bolt's significance was its location near the victim's body, not characteristics intrinsic to the bolt itself; the bolt's location had already been well established, without objection by defendant, by an officer's description of its location illustrated by photographs taken at the crime scene; and the bolt was sufficiently identified by the officer as being the one he observed at the scene so that a chain of custody foundation was not in any event required for its admission. 5. Grand Jury 2; Indictment and Warrant 4 — testimony about appearance before grand jury — mistrial properly denied The trial court did not err in failing to declare a mistrial because of an officer's testimony with respect to his appearance before the grand jury where the sole purpose of the testimony was to establish the date thereof and to show that a State's witness was the first person arrested for the murder in question, and the officer said nothing about his testimony before or any other "proceedings" of the grand jury which must under G.S. 15A-236 (e) be kept secret. 6. Criminal Law 89 — credibility of witness — absence of criminal record — direct examination The party calling a witness may enhance the credibility of the witness by showing on direct examination of the witness that he has no criminal record or that his criminal record is relatively insignificant. 7. Criminal Law 169 — failure to object to evidence — similar evidence admitted without objection Defendant cannot complain of a witness's negative response to a question as to whether he had ever been convicted of any crimes of violence where he did not object to the question, and where any objection would have been waived by defendant's own extensive cross-examination of the witness about his prior criminal record and other specific acts of misconduct. App. R. 10 (b)(1). 8. Criminal Law 87.1 — leading question on voir dire — absence of prejudice Defendant was not prejudiced by a leading question asked a witness on voir dire as to whether the reason he could not pick defendant out from<page_number>Page 290</page_number> photographs was because defendant had long hair and a beard in the photographs where the witness had previously stated on cross-examination that he could not identify defendant from the photographs because "he had the long hair and beard." 9. Criminal Law 34.7 — commission of other offense — admissibility to show intent Testimony by a witness in a first degree murder case that while she and defendant were facing a mirror in a motel room on the day after the crime, defendant said, "I done killed one damn man and I will blow your damn head off," and that defendant then shot the mirror and "blew it all to pieces" was admissible to show defendant's quo animo, i.e., that defendant intentionally and with malice killed the victim, even though it tended to show defendant's commission of another offense.

1. Homicide 5, 21.7 — second degree murder in perpetration of felony — no such offense — sufficient evidence of second degree murder The jury's verdict of guilty of murder in the second degree in the perpetration of a felony must be set aside since there is no offense of felony murder in the second degree in North Carolina. However, the jury's verdict also finding defendant guilty of murder in the second degree was supported by evidence tending to show that the victim was shot by defendant while chasing defendant after defendant had stolen a purse from a car. 2. Homicide 31.7 — remand for proper sentence for second degree murder Where the jury found defendant guilty of murder in the second degree and guilty of second degree murder in the perpetration of a felony, the trial court indicated on its judgment and commitment sheet that defendant was found guilty of two separate offenses, the verdict of guilty of second degree murder in the perpetration of a felony must be set aside since no such offense is recognized in North Carolina, and where it is unclear whether for sentencing purposes the trial court treated defendant's conviction of murder in the second degree as a single conviction under two theories or as two separate convictions, the case must be remanded to the superior court for resentencing on the valid second degree murder conviction. 3. Criminal Law 111.1 — initial instruction to prospective jurors — failure to mention not guilty verdict The trial court did not express an opinion in violation of G.S. <cross_reference>15A-1222</cross_reference> or G.S. <cross_reference>15A-1213</cross_reference> in its initial statement to prospective jurors that it was their duty to determine "whether the defendant is guilty of the crime charged, or any lesser included offense, about which you are instructed" and in failing to mention that they could find defendant not guilty, although it would be the better practice to state explicitly to prospective jurors that it is their duty to determine whether defendant is guilty or not guilty. 4. Criminal Law 102.5 — improper questions by prosecutor — cure of impropriety Impropriety in the prosecutor's reference to the subject as the defendant on three occasions when the subject had not been identified as the defendant by the witness was cured when the court sustained defendant's objection on all three occasions and on the third occasion admonished the prosecutor in the absence of the jury. 5. Criminal Law 99.7 — ordering hostile witness to testify The trial court did not err in ordering a hostile witness to answer a question within his knowledge. 6. Homicide 28.1 — self-defense — no duty to instruct The trial court in a homicide case did not err in failing to instruct the jury on self-defense where the only evidence remotely<page_number>Page 304</page_number> connected to the issue of self-defense was evidence that the victim had grabbed defendant's arm in trying to apprehend him for having snatched a purse and that the defendant had made a broad statement while in prison to the effect that he had to kill the victim or else the victim would have killed him, and where there was no evidence that the 53-year-old victim was armed or had threatened defendant in any way. 7. Criminal Law 70 — tape recording — deletion of incompetent portion The trial court did not err in the deletion of an incompetent portion of a prosecution witness's tape recorded statement which was admitted for corroborative purposes. 8. Homicide 32.1 — submission of first degree murder — error cured by second degree verdict Any error in the trial court's submission of an issue as to defendant's guilt of first degree murder because the evidence was insufficient to show premeditation and deliberation was not prejudicial where the jury convicted defendant of second degree murder, thereby impliedly finding that the killing was without premeditation and deliberation, and where there was no showing that the verdict of second degree murder was affected by such error. 9. Criminal Law 102.6 — jury argument — last argument by defense counsel — uncontradicted evidence The prosecutor's statements in his closing jury argument that defense counsel "will have the last argument because they did not put on any evidence" and that particular pieces of evidence had not been contradicted were not improper. 10. Criminal Law 111.1 — propriety of certain instructions The trial court in a homicide case did not err in suggesting that the jurors "start at the top of the verdict sheet and move down" in their deliberations or in telling the jurors before their sequestration that "It is best not even to think about this case between now and in the morning." G.S. <cross_reference>15A-1236</cross_reference> (a)(1)-(5). 11. Criminal Law 122.2 — sending jury back to jury room for 10 minutes — no coercion of verdict The trial court did not coerce a verdict in stating to the jury after over 10 hours of deliberation, "All right, I'm going to leave you in there for 10 minutes. Let the jury go back to the jury room for 10 minutes," where the statement was made after the jury foreman was unable to tell the court whether she felt the jury would be able to reach a unanimous verdict, it appears that the court was sending the jurors back to the jury room for 10 minutes so that they could decide if they felt that at some point they could reach a unanimous verdict, and instead of determining if they would be able to reach a verdict, the jurors reached a verdict within such time. 12. Criminal Law 138 — sentence for second degree murder — pecuniary gain aggravating factor In imposing a sentence for second degree murder, the evidence was sufficient to support the trial court's finding as an aggravating factor that the murder was committed for pecuniary<page_number>Page 305</page_number> gain where it tended to show that defendant snatched a purse and was running away when he shot the victim, although defendant had dropped the purse before he shot the victim. G.S. 15A-1340.4 (a)(1)(c).

1. Robbery 4.7 — armed robbery — insufficiency of evidence The State's evidence was insufficient to support conviction of defendant for armed robbery where it tended to show that defendant threatened the victim and struck him with a stick; the victim threw his duffel bag at defendant in self-defense; upon returning to the scene to retrieve his duffel bag, the victim was again threatened by defendant and left without picking up his bag; when the victim came back two days later, some personal items from his duffel bag were missing, including $17.00 from his wallet; and defendant was the person who took the $17.00 from the victim's wallet, since there was no evidence that defendant's threats or use of violence preceded or were concomitant with the taking of the victim's property and that defendant's threats induced the victim to part with his property.<page_number>Page 471</page_number> 2. Criminal Law 15.1 — motion for change of venue — pretrial publicity — inability to receive fair trial in county In a prosecution for second degree murder, armed robbery and assault with a deadly weapon inflicting serious injury in which various accounts of the incident in question suggested that it resulted from the perpetrator's disapproval of a group of people he thought were homosexuals who were swimming and sunning along a river, the trial court did not err in the denial of defendant's motion for a change of venue because of pretrial publicity where the vast majority of newspaper articles and radio and television news accounts of the incident were factual and noninflammatory. Nor did two newspaper editorials about the incident, the media's reports on meetings held by homosexuals and their supporters to protest the incident, or a public opinion survey showing that 87% of those surveyed were aware of the incident show that defendant could not receive a fair trial in the county so as to require a change of venue. 3. Criminal Law 22 — arraignment — name not on arraignment calendar — harmless error While the trial court erred in arraigning defendant without his consent when his name failed to appear on the arraignment calendar in violation of subsection (a) of G.S. <cross_reference>15A-943</cross_reference>, such error was not prejudicial where defendant was nevertheless given a week's interval between his arraignment and trial pursuant to subsection (b) of that statute, and where defense counsel had previously advised the trial court that they would be ready for trial on the date of the arraignment. 4. Criminal Law 101 — failure to admonish jury fully before each recess The trial court did not err in failing to give the jury the full admonishments set forth in G.S. <cross_reference>15A-1236</cross_reference> (a) prior to each recess where admonishments given to the jury prior to the recesses ranged from extensive instructions containing every caution set forth in G.S. <cross_reference>15A-1236</cross_reference> (a) to a brief reminder to be aware of the instructions previously given by the court. 5. Homicide 16 — competency of statements as dying declarations Statements made by deceased were properly admitted as dying declarations pursuant to G.S. <cross_reference>8-51.1</cross_reference> where the trial court determined upon supporting evidence that deceased did in fact make statements to the effect that he knew he was dying. It was unnecessary for the court to find further that deceased believed there was no hope of recovery since deceased obviously had such a belief if he believed he was going to die.

1. Criminal Law 66.9, 66.16 — photographic identification not suggestive — independent origin of in-court identification A pretrial procedure at which photographs of seven black males, many of them wearing black caps or toboggans, were displayed to a rape victim was not impermissibly suggestive or conducive to irreparable mistaken identification because the victim's assailant had been described as wearing a dark colored coat and toboggan and defendant was the only person in the photographs wearing a dark coat; moreover, the fact that the victim was unable to make a positive identification of defendant from the photographs belies defendant's assertion that the procedure was impermissibly suggestive. Even if the photographic procedure was impermissibly suggestive, the trial court's determination that the victim's in-court identification of defendant was of independent origin was supported by evidence that the victim observed defendant for a period of at least three to four minutes while he stood on her lighted front porch; although defendant's face was partially covered by a toboggan, the victim was able to see his face, eyes and mouth; and the victim gave a description of her assailant to an officer when he interviewed her in the hospital some six days after the crime occurred. 2. Criminal Law 66.1 — identification testimony — opportunity for observation A rape victim's identification of defendant as her assailant was not inherently incredible and unworthy of belief where the victim was afforded a sufficient opportunity to observe her assailant so as to be able to make an accurate identification of him in that the victim observed defendant for a period of at least three to four minutes while he stood on her lighted front porch, and although defendant's face was partially covered by a toboggan, the victim was able to see his face, eyes and mouth. 3. Criminal Law 76.10, 146.1 — attack on confession — theory not used at trial Defendant cannot attack the admissibility of his confession in the appellate division upon a theory entirely different from that relied upon at trial.

1. Criminal Law 163 — necessity for jury instruction conference — no inconsistency between statute and rule of practice If either party to the trial desires a recorded instruction conference, G.S. <cross_reference>15A-1231</cross_reference> (b) requires that party to make such a request to the trial judge. Absent such a request, G.S. <cross_reference>15A-1231</cross_reference> (b) is silent and Rule 21 of the General Rules of Practice for the Superior and District Courts supplements the statute by requiring the trial court to hold an unrecorded conference. Therefore, there is no conflict between the two provisions and both may be given full effect. Art. IV, 13 (2) of the N.C. Constitution. 2. Criminal Law 158.2 — silence of record — presumption that judge acted properly Where the record is silent as to whether the trial judge conducted a jury instruction conference as required by Rule 21 of the General Rules of Practice for the Superior and District Courts, it will be presumed that he did so. 3. Criminal Law 163 — opportunity to object to jury instructions out of hearing of jury Defendant was given a sufficient opportunity to object to the jury instructions out of the hearing of the jury as required before a waiver of the right to assert an assignment of error based on the instructions can be found under App. Rule 10 (b)(2) where, at the conclusion of the charge, the court asked if there was "anything further from either the State or the defendant," to which defendant responded, "Nothing for the defendant," since defendant could have objected at this time to the instructions out of the hearing of the jury or requested that he be permitted to make his objections out of the presence of the jury. Therefore, since defendant did not object to the instructions as given, he is precluded by App. Rule 10 (b)(2) from assigning as error any portion of the jury charge. 4. Criminal Law 163 — necessity for objection to instructions — conflict between appellate rule and statute The provisions of G.S. <cross_reference>15A-1446</cross_reference> (d)(13) permitting appellate review of errors in the charge "even though no objection, exception or motion had been made in the trial division" and of G.S. <cross_reference>15A-1231</cross_reference> (d) stating that "[f]ailure to object to an erroneous instruction or to the erroneous failure to give an instruction does not constitute a waiver of the right to appeal on that error in accordance with G.S. <cross_reference>15A-1446</cross_reference> (d)(13)" are inconsistent with App. Rule 10 (b)(2) and must yield thereto, since Rule 10 (b)(2) is a rule of appellate practice and procedure promulgated by the Supreme Court pursuant to its exclusive authority under Art. IV, 13 (2) of the N.C. Constitution.<page_number>Page 531</page_number> 5. Criminal Law 163 — instructions not plain error — necessity for objection The trial court's instructions on defendant's failure to testify did not contain "plain error" such as to require a new trial despite defendant's failure to object to the instructions given as required by App. Rule 10 (b)(2).

1. Courts 9.1; Jury 6 — individual voir dire of jurors — discretion of trial judge — effect of prior order by another judge The trial judge in a first degree murder case was not bound by a pretrial order entered by another judge which provided for individual voir dire of the prospective jurors since (1) the rule that one judge may not review orders, judgments or actions of another judge of coordinate jurisdiction does not apply to interlocutory orders given during the progress of an action which affect the procedure and conduct of the trial, and (2) the judge who actually tried the case was given the discretionary power by G.S. <cross_reference>15A-1214</cross_reference> (j) to determine whether jurors should be selected one at a time. 2. Jury 6 — denial of motion for individual voir dire and to sequester jury The trial court did not abuse its discretion in denying defendant's motion for individual voir dire in jury selection, to sequester the jury venire during voir dire proceedings, and to sequester the trial jury after selection was completed because of pretrial publicity concerning defendant's case where defendant failed to produce any evidence tending to show the existence of inflammatory, nonfactual reporting by the news media or that any seated juror was affected by pretrial publicity. Nor did the denial of such motion constitute prejudicial error because it permitted jurors to be "educated" by other jurors' answers to questions posed on the voir dire so as to enable them to escape jury service. 3. Constitutional Law 31 — indigent defendant — refusal to appoint expert in psychology The trial court did not abuse its discretion in the denial of an indigent defendant's motion that he be permitted, at State expense, to retain an expert in psychology experienced in jury selection in criminal cases where defendant failed to show that the denial of his motion deprived him of a fair trial or that he would have been materially assisted in the preparation of his defense had the motion been granted. G.S. <cross_reference>7A-450</cross_reference> (b).<page_number>Page 635</page_number> 4. Criminal Law 75.3 — confession — effect of confronting defendant with statements of others Confronting an accused with statements of his co-defendants which implicate him in a crime does not, standing alone, render an ensuing confession involuntary. 5. Criminal Law 75.2 — confession not coerced by threats of gas chamber The evidence supported the trial court's determination that defendant was not coerced into confessing by threats that he would go to the gas chamber unless he admitted his participation in the crimes charged. 6. Criminal Law 75.14 — confession — subnormal mentality A subnormal mental condition standing alone will not render an otherwise voluntary confession inadmissible. 7. Homicide 21.6; Larceny 7 — murder in perpetration of felony — larceny — sufficiency of evidence The State's evidence was sufficient to support defendant's conviction of larceny and first degree murder committed in the perpetration of armed robbery where it tended to show that defendant clubbed the victim to the ground and took his automobile and other property; there was medical evidence that the victim died as a result of blows to the head from a blunt instrument; and there was further evidence that defendant was seen in the victim's stolen automobile shortly after the killing took place and articles taken from the victim were found in defendant's possession. 8. Criminal Law 135.4; Homicide 31.1 — felony murder — instructions on when death penalty may be imposed Where the evidence in a felony murder case was conflicting as to whether defendant himself robbed the victim and delivered the fatal blows or whether defendant participated in the crime only as a lookout, the trial court correctly instructed the jury that defendant could be found guilty of felony murder under the theory that defendant was the actual perpetrator of the crime and struck the fatal blows or under the theory that, although not the actual perpetrator, he was present and aided and abetted in the commission of the robbery and the resultant felony murder actually committed by another, and the jury's verdict was guilty of first degree murder without an indication as to the theory upon which defendant was convicted, the trial court erred in failing to instruct the jurors during the penalty phase of the trial that, in order to impose the death penalty, they would have to find that defendant killed, attempted to kill or intended or contemplated that the victim would be killed. 9. Criminal Law 135.4 — first degree murder — submission of mitigating circumstances The burden of persuading the jury as to the existence of any mitigating circumstance is upon the defendant to so prove by a preponderance of the evidence, and when all the evidence tends to show the existence of a particular mitigating circumstance, a defendant is entitled to a peremptory instruction on that issue. Even when a defendant offers no evidence to support the existence of a mitigating circumstance, the mitigating circumstance must be submitted when<page_number>Page 636</page_number> the State offers or elicits evidence from which a jury could reasonably infer that the circumstance exists. 10. Criminal Law 135.4 — first degree murder — no significant history of prior criminal activity — failure to submit as mitigating circumstance The trial court in a capital case did not err in refusing, upon defendant's request, to submit as a mitigating circumstance that defendant had no significant history of prior criminal activity where the State, upon cross-examination of defendant, elicited evidence of numerous past criminal activities. G.S. <cross_reference>15A-2000</cross_reference> (f)(1). 11. Criminal Law 135.4 — first degree murder — mental or emotional disturbance mitigating circumstance — error in failure to submit The trial court erred in failing to submit to the sentencing jury in a first degree murder case the mitigating factor as to whether defendant was under the influence of a mental or emotional disturbance at the time the crime was committed where there was lay testimony that defendant had a long history of treatment for mental problems which began when he was 10 years old, and a psychiatrist testified that defendant was mildly mentally retarded and had an antisocial personality disorder. G.S. <cross_reference>15A-2000</cross_reference> (f)(2). 12. Criminal Law 135.4 — first degree murder — impaired capacity mitigating circumstance — error in failure to submit The trial court erred in failing to submit to the sentencing jury in a first degree murder case the mitigating circumstance as to whether defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired where there was lay testimony that defendant had a long history of treatment for mental problems which began when he was 10 years old, and a psychiatrist testified that she had examined defendant after the commission of the charged crime and that defendant was mildly retarded and had an antisocial personality disorder. G.S. <cross_reference>15A-2000</cross_reference> (f)(6). 13. Criminal Law 135.4 — first degree murder — accomplice or accessory mitigating circumstance — error in failure to submit The trial court erred in failing to submit to the sentencing jury in a first degree murder case the mitigating circumstance as to whether defendant was an accomplice in or an accessory to the capital felony committed by another person and whether his participation was relatively minor where the State presented evidence that defendant actually delivered the blows which caused the victim's death, and the State further offered a purported confession which tended to show that defendant was only a lookout and did not deliver the fatal blows. G.S. <cross_reference>15A-2000</cross_reference> (f)(4). 14. Criminal Law 135.4 — first degree murder — insufficient evidence to support certain mitigating circumstances The evidence was insufficient to require the trial court to submit to the sentencing jury in a first degree murder prosecution mitigating circumstances as to whether defendant was subjected in his formative years to cruelty and physical abuse by his parents and as to whether defendant in his formative years was subjected to mental abuse by his parents.<page_number>Page 637</page_number> 15. Criminal Law 135.4 — first degree murder — mitigating circumstance — no relationship with natural father — insufficient evidence The evidence did not require the trial court to submit to the sentencing jury in a first degree murder case the mitigating circumstance as to whether defendant was an illegitimate child who never experienced a relationship with his natural father where the evidence showed that defendant was an illegitimate child; a marriage was never consummated between defendant's mother and his natural father, but the father lived with the mother "off and on" in the past; defendant's older sister had the responsibility of rearing defendant since his mother was often away working to help support the family; defendant's father left the household when defendant was about five or six years old; at about that time, defendant was in an accident and sustained a serious injury to his leg; on occasion, defendant's father would come to the home to see how he was progressing; and although the father was not in the home, defendant's mother would call him and tell him that defendant "had to go to the hospital or something like that and he could come out there."

1. Homicide 21.5 — first degree murder — sufficiency of evidence The trial court did not err in submitting the charge of first degree murder to the jury where the evidence tended to show that defendant had shot at the deceased two weeks prior to the killing; the defendant and the deceased had argued earlier in the day and fought with knives, resulting in a cut on the defendant's shoulder; just prior to the fatal shooting, a witness told the defendant that the deceased was coming in his car and that if he wanted to<page_number>Page 659</page_number> "get" him this was his chance; following that, the defendant took his shotgun and pointed it at the deceased's car; the deceased had opened the door and placed one foot outside the car when the defendant shot him once with a sawed-off shotgun; and the defendant then got in his own car and left. 2. Criminal Law 89.4 — admission of prior inconsistent statements of defendant's witnesses — proper In a prosecution for first degree murder, the trial court did not err in allowing two officers to testify on rebuttal concerning two witnesses' prior inconsistent statements where the statements were pertinent and material to the pending inquiry and evidence of the facts contained within the statements would have been admissible if offered for some purpose other than mere contradiction. One of the witness's statements tended to show that defendant acted with premeditation and deliberation and the other witness's statement dealt with whether or not defendant's shooting of the deceased was in self-defense. 3. Homicide 30.2 — failure to charge on voluntary manslaughter — harmless error Even assuming the evidence in a trial for first degree murder supported an instruction on manslaughter, the court's failure to give the requested instruction was harmless error since the court instructed the jury on murder in the first degree, murder in the second degree and self-defense and since the jury returned a verdict of murder in the first degree.

Judgments 4 — conditional order — void An order which stated that plaintiffs action will be dismissed if plaintiff fails to comply with a discovery order before a certain date was conditional and therefore void.

1. Attorneys at Law 2 — Board of Law Examiners — quorum of members — sufficiency of evidence A letter sent by counsel for the Board of Law Examiners asserting that a quorum was present and offering to provide affidavits of sworn testimony before the trial judge was sufficient to establish that a quorum of the Board was present and participating when a decision was made on appellant's case. 2. Attorneys at Law 2 — evidence of quorum of Board members — unanimous vote Where six members of the eleven members of the Board of Law Examiners participated in a decision of 30 June 1982 concerning appellant and were also present when testimony was heard concerning appellant in July of 1978 and in August of 1981, and where the decisions of August 1981 and June 1982 were taken upon a unanimous vote, any action by the Board was proper. 3. Attorneys at Law 2 — findings of Board supported by substantial evidence There was substantial competent evidence to support the Board of Law Examiners' findings that: (1) appellant threatened to kill a man named Barney Adler in 1966; (2) appellant made belligerent statements to the secretary of a man with whom his wife was having a dispute; (3) appellant lied under oath while testifying before the Board and (4) appellant purposefully omitted a conviction for assault on a female from his application and registration forms in an attempt to mislead the Board. These findings in turn constituted a reasonable basis from which the Board could determine that appellant had not been completely rehabilitated and that he did not possess the moral character necessary to stand for the 1978 Bar Examination.