Volume 309 — North Carolina Reports

1. Criminal Law 50.2 — failure to strike testimony referring to "bloodstains" — no error Since the trial judge in a prosecution for second degree murder could have properly allowed the witness to testify that he observed bloodstains, the court did not commit prejudicial error when it failed to instruct the jury to disregard the witness's statements identifying red stains as "bloodstains." 2. Homicide 30.3 — failure to submit involuntary manslaughter as possible verdict — prejudicial error Where defendant's evidence tended to show that he shot the victim when the defendant grabbed the gun and attempted to throw it across the room, the evidence was sufficient to merit an instruction of involuntary manslaughter. The fact that the evidence also merited an instruction of accidental killing which was given, did not alleviate the need for an instruction on involuntary<page_number>Page 142</page_number> manslaughter since it also was properly presented by the evidence. Nor was the error cured when the jury returned a verdict of murder in the second degree. 3. Homicide 27.1, 28 — instructions on voluntary manslaughter and self-defense not supported by evidence In a prosecution for second degree murder, the evidence did not support instructions on self-defense or voluntary manslaughter.

Criminal Law 50.1 — expert testimony — unresponsive answer — failure to strike prejudicial error The trial court committed prejudicial error in failing to strike the answer of a psychiatrist in which the psychiatrist stated his opinion but failed to state his opinion in could or might terms. The psychiatrist was asked for his opinion of whether the victim "was fantasizing in any manner in his account of" how the first degree sexual offense for which defendant was being tried occurred. Instead of answering the question, the witness stated his opinion "that an attack occurred on [the victim]; that this was a reality." G.S. 8-58.13.

1. Criminal Law 138 — failure to consider mitigating factor — passive role in commission of murder Where the evidence before the court was both uncontradicted and manifestly credible that defendant played a passive role in the commission of a murder, the trial court erred in failing to consider it as a mitigating factor in defendant's sentencing hearing. G.S. 15A-1340.4 (a)(2). 2. Criminal Law 138 — aggravating factor that offense committed for pecuniary gain improperly considered In a prosecution for murder, felonious larceny, armed robbery and conspiracy, the trial court erroneously considered as an aggravating factor that the offenses were committed for pecuniary gain since there was no evidence that defendant was "hired" or "paid" to commit the offenses. G.S. 15A1340.4(a)(1)c. 3. Criminal Law 138 — aggravating factor that defendant occupied position of leadership or dominance properly considered The trial court properly considered as an aggravating factor in an armed robbery case that defendant "induced others to participate in the commission of the offense or occupied a position of leadership or dominance of other participants" where the evidence showed that defendant was the one who initially grabbed the victim and forced her to the floor that defendant obtained her keys, told a codefendant to start the car and was the driver of the car as they fled the scene.<page_number>Page 215</page_number>

1. Conspiracy 5.1 — statements by co-conspirators — admissibility against defendant The State's evidence was sufficient to make a prima facie showing of a conspiracy to commit sexual assaults so that statements made by two co-conspirators in furtherance of the conspiracy were admissible against defendant where it tended to show that defendant and the two co-conspirators were in a convenience store parking lot when they observed the victim enter the parking lot; shortly thereafter, one co-conspirator went to the victim's automobile and was quickly joined by the other co-conspirator; one co-conspirator entered the automobile, and after he left the victim discovered<page_number>Page 560</page_number> that her keys were missing; the second co-conspirator knew that the keys had been taken and enticed the victim into going with him on the pretext of recovering the keys; as the second co-conspirator and the victim walked away from the parking lot, defendant appeared and followed them; and the second co-conspirator then forced the victim to go to the steps of a nearby church where all three men took part in sexual assaults upon the victim. 2. Conspiracy 5.2 — declarations of co-conspirators — prima facie case of conspiracy — order of proof Because of the nature of a conspiracy, the State can seldom establish a prima facie case of conspiracy by extrinsic evidence before tendering the acts and declarations of the conspirators which link them to the crimes charged. Therefore, our courts often permit the State to offer the acts or declarations of a conspirator before the prima facie case of conspiracy is sufficiently established, but the prosecution must properly prove the existence of the prima facie case of conspiracy before the close of the State's evidence in order to have the benefit of these declarations and acts. 3. Conspiracy 5.2 — declarations of co-conspirators — failure to show prima facie case of conspiracy If inadmissible statements of co-conspirators are admitted and it develops that a case of conspiracy has not been shown, then upon proper motion the trial judge may strike the evidence of declarations or acts of the co-conspirators or grant a defendant's motion for judgment as of nonsuit if there is insufficient evidence to take the case to the jury without the aid of such declarations or acts. 4. Conspiracy 5.2 — declarations of co-conspirators — voir dire hearing If he so chooses, the trial judge may, at any point in the trial, conduct a voir dire hearing in order to determine whether the evidence makes out a prima facie case of conspiracy for purposes of admitting the acts and declarations of co-conspirators in furtherance thereof. 5. Rape and Allied Offenses 2 — aider and abettor of sexual offense — first degree offense Under our first degree sexual offense statute, an aider and abettor of a sexual offense is guilty of a first degree sexual offense or nothing at all. G.S. <cross_reference>14-27.4</cross_reference> (a) 6. Rape and Allied Offenses 2 — first degree sexual offense — aider and abettor By its enactment of G.S. <cross_reference>14-27.4</cross_reference> (a)(2)(c), the legislature chose to include in the more serious first degree categories those sexual offenses which involved aiders and abettors and to subject to a harsher penalty those who participated in gang assaults, regardless of the actual role of the participant. 7. Criminal Law 26.5, 138; Rape and Allied Offenses 7 — first degree sexual offense — aider and abettor — no multiple convictions or enhanced punishment by use of same element twice Defendant was not subjected to multiple convictions or to enhanced punishment by an improper use of the same element twice when he was<page_number>Page 561</page_number> convicted of a first degree sexual offense on the theory that he aided and abetted two co-conspirators in a first degree sexual offense since defendant's acts of aiding and abetting, though used to elevate the charges against the co-conspirators to first degree offenses in the first instance, were used against defendant only once, that is, to find him guilty of the crime of first degree sexual offense by reason of aiding and abetting.

1. Contracts 6.1 — unlicensed general contractor — doctrine of "substantial compliance" rejected The doctrine of "substantial compliance" with the general contractor's licensing statutes is rejected by the Supreme Court. G.S. <cross_reference>87-1</cross_reference>; G.S. <cross_reference>87-13</cross_reference>. 2. Contracts 6.1 — unlicensed general contractor — inability to enforce construction contract A contract illegally entered into by an unlicensed general construction contractor in unenforceable by the contractor and cannot be validated by the contractor's subsequent procurement of a license. Neither may the contractor recover for extras, additions or changes made during construction commenced pursuant to the contract. 3. Contracts 6.1 — enforcement of construction contract against unlicensed contractor Parties not regulated by the general contractor's licensing statutes may enforce a construction contract against an unlicensed contractor. 4. Contracts 6.1 — expiration of construction contractor's license — recovery permitted If a licensed contractor's license expires, for whatever reason, during construction, he may recover for only the work performed while he was duly licensed. If the contractor renews his license during construction, he may recover for work performed before expiration and after renewal. 5. Contracts 6.1 — construction contract — contractor unlicensed when contract entered — inability to enforce contract Plaintiff construction contractor was not entitled to recover under a contract to construct a house for defendants for $106.850.00 or for extras in construction allegedly requested by defendants where plaintiff was unlicensed at the time he negotiated and contracted with defendants to construct their house.

1. Criminal Law 138 — mitigating circumstance of acknowledgment of wrongdoing at early stage of criminal process — clarifying term "criminal process" For purposes of the mitigating circumstance listed under G.S. 15A-1340.4 (a)(2)l, the "criminal process" begins upon either the issuance of a warrant or information, or upon return of a true bill of indictment or presentment, or upon arrest, whichever comes first. Therefore, where defendant confessed to the law enforcement officers who were transporting him to the patrol station immediately after his arrest, and further aided them in retrieving the stolen articles, defendant voluntarily acknowledged his wrongdoing in an early stage of the criminal process and was entitled to the benefit of the statutory mitigating circumstance listed in G.S. 15A-1340.4 (a). The defendant's motive in acknowledging his guilt at an early stage does not go to the existence of the mitigating factor, but goes to the weight the trial judge must give that factor. G.S. 15A-1340.3. 2. Criminal Law 138 — aggravating factor of prior criminal convictions — methods by which prior convictions may be shown The enumerated methods of proof of G.S. 15A-1340.4 (e) dealing with the aggravating factor that defendant had a prior criminal conviction punishable by more than 60 days' imprisonment, are permissive rather than mandatory. 3. Burglary and Unlawful Breakings 8 — breaking and entering — sentence — no abuse of discretion A trial judge did not abuse his discretion in sentencing defendant to a 20-year sentence for the breaking into four unoccupied vacation cottages over a two-day period. G.S. <cross_reference>14-54</cross_reference>, G.S. 15A-1340.4 (f), and G.S. <cross_reference>14-1.1</cross_reference> (a)(8).

Criminal Law 138 — Fair Sentencing Act — aggravating factor — prior convictions — no objection by defendant to introduction of evidence Where defendant did not object to the introduction of evidence of his prior conviction or convictions, nor did he allege that he was indigent and not<page_number>Page 624</page_number> represented by counsel at the time of his prior conviction or convictions, the Court of Appeals erred in holding that the State's failure to show that, at the time of his prior conviction or convictions, the defendant was either not indigent or was represented by or waived counsel rendered the finding of this aggravating factor by the trial court erroneous. G.S. 15A-1340.4 (a)(1)(a).

1. Jury 5.1 — jury selection — proposed selection of jurors opposed and unopposed to capital punishment — correctly refused The trial judge correctly refused to permit jury selection in accordance with a method proposed by defendant in which the jury would have been composed of both those opposed and unopposed to capital punishment for the purpose of determining guilt and then, at the sentencing phase, replacing those opposed by alternates who are unopposed to the death penalty since such a method contravenes G.S. <cross_reference>15A-2000</cross_reference> (a)(2) which contemplates that the same jury which determines guilt will recommend the sentence. 2. Homicide 21.5 — first degree murder — sufficiency of evidence The evidence was sufficient to support a verdict of murder in the first degree where the evidence tended to show that defendant, in the front seat of a car which contained four other people, pointed a .45 caliber revolver at the victim's head; that there was no evidence that the decedent provoked this menacing gesture in any way; that another occupant of the car testified that defendant said to the victim "You don't believe I'll shoot you, do you?"; that each occupant of the car stated that defendant held the gun on the decedent for at least two minutes and that they were begging him not to shoot; that unmindful of their pleadings, defendant shot the victim in the head; and that the .45 caliber revolver was a "single action" type which required that the hammer had to be pulled back and set and the trigger pulled before it fired. 3. Criminal Law 170.2 — improper question by prosecutor not requiring mistrial The trial court properly denied defendant's motion for a mistrial after, on cross-examination of defendant, he was asked if he had "unlawfully kill[ed] and slay[ed] one Ricky Cook." Objection to this question was immediately sustained, the question was in reference to an involuntary manslaughter conviction in which defendant killed Ricky Cook when he was driving a car without a license at a speed of up to 120 miles per hour while under the influence of alcohol, and the question was asked in good faith and conformed to the law of involuntary manslaughter. 4. Criminal Law 45.1 — experimental evidence — properly excluded The trial court did not abuse its discretion in excluding a photograph illustrative of defendant's brother's testimony which was offered to impeach the testimony of two prosecution witnesses. The witnesses had testified that they had lived in an apartment over a building and that on the night of the murder they had observed cars similar to that occupied by defendant and his companions drive up in front of the building; that the area where the car stopped was well lighted; that there was at least one light on inside the car; that at least one of the windows in the car was down; that they could hear the occupants talking loudly in an argumentative tone; that one of the witnesses saw a passenger in the front seat shoot out the window; and that both witnesses<page_number>Page 675</page_number> saw the same person point a gun into the backseat and after several minutes heard another gunshot and saw the car speed away. Defendant sought to introduce evidence that, from the apartment window, the witnesses would have been unable to see a person sitting in the front seat of the automobile but the trial judge properly ruled that the evidence sought to be admitted had been developed by means of an experiment, and the findings of fact found to support his ruling were supported by the evidence offered on voir dire. 5. Criminal Law 102.10 — jury argument — reference to prior convictions or criminal conduct — improper — not prejudicial Although a prosecutor improperly argued defendant's prior misdeeds for purposes other than mere impeachment in his argument to the jury, the remarks were not such that the trial judge was required to declare a mistrial sua sponte since each time defendant objected to the challenged remarks, the objections were sustained and the trial judge carefully instructed the jury that they were to consider the evidence of defendant's past behavior only as he would explain in his charge, and since the judge later gave a complete and accurate instruction relating to the jury's consideration of defendant's prior acts of misconduct. 6. Criminal Law 113.1 — recapitulation of evidence by trial court — error immaterial In a prosecution for first degree murder where the trial court, in summarizing the evidence, stated that defendant said something to the effect that "You don't believe I'll kill you" rather than "You don't believe I'll shoot you," the error was not "plain error" mandating a new trial for defendant since how defendant commented was relatively immaterial in that the express desire to shoot someone in the context in which it was stated was synonymous with killing him. <block_quote> 7. Homicide 24.2 — first degree murder — instruction regarding malice In a prosecution for first degree murder, the trial judge correctly instructed the jury that malice and unlawfulness are implied from an intentional shooting with a deadly weapon since there was no evidence in the case of the elements of heat of passion on sudden provocation or self-defense, and since even if an instructional error was committed, the first-degree murder verdict rendered any error harmless beyond a reasonable doubt.</block_quote> 8. Criminal Law 135.4 — death case — proportionality review — sentence of death excessive and disproportionate In a prosecution for first degree murder, the death sentence imposed was disproportionate within the meaning of G.S. <cross_reference>15A-2000</cross_reference>(c)(2) in that it did "not rise to the level of those murders in which [the Court] [has] approved the death sentence upon proportionality review." Defendant did not murder his victim while in the perpetration of another felony; defendant did not coldly calculate the commission of the crime for a long period of time; the murder was not torturous as in other death cases; there was substantial evidence indicating that defendant and his traveling companions were highly intoxicated; there was no motive for the killing; and immediately after defendant shot the victim, he exhibited a concern for the victim's life and remorse for his action<page_number>Page 676</page_number> by directing the driver of the automobile to the hospital and by entering the hospital himself to seek medical assistance for the decedent. In no other capital case among those in our proportionality review did the defendant express concern for the victim's life or remorse for his action by attempting to secure immediate medical attention for the deceased.

1. Homicide 8.1, 21.5 — first degree murder — sufficiency of evidence — intoxication — premeditation and deliberation In a prosecution for first degree murder, substantial evidence was presented which tended to show that defendant killed his victim after forming a deliberate and premeditated intent to kill, and although portions of defendant's evidence tended to show that he was intoxicated and doing strange things at a nightclub, this evidence did not warrant a finding, as a matter of law, that defendant was incapable of forming the specific intent to kill. 2. Homicide 7.1 — first degree murder — defense of unconsciousness — insufficient evidence to require dismissal of charge In a prosecution for first degree murder, although there was some evidence that defendant may have been unconscious as the result of an alcoholic blackout at the time he shot his victim, the evidence was insufficient to require the jury to so find.

1. Jury 2.1 — denial of motion for special venire — jury for defendant's trial and for accomplice's trial selected from same venire — no abuse in discretion There was no abuse of discretion in the trial court's denial of defendant's motion for a special venire or for a continuance until a special venire could be obtained where, although both defendant's trial and his accomplice's trial were severed, the jury for each trial was selected from the same venire. The fact that defendant's jurors were exposed to voir dire questions by his accomplice's attorneys and to his accomplice's contentions regarding his accomplice's potential defense of insanity, and the fact that one of the jurors stated that he "assumed" defendant's accomplice had been convicted when he observed defendant's accomplice being escorted from the courtroom in handcuffs, were not sufficient to show an abuse of discretion. G.S. <cross_reference>15A-1240</cross_reference>. 2. Jury 6.1 — denial of motion for individual voir dire — no abuse of discretion Defendant's contention that the probing of particular jurors on voir dire regarding sensitive matters infects and taints the remainder of the venire without more, was insufficient to support defendant's contention that the trial court abused its discretion in refusing to allow individual voir dire of the prospective jurors and sequestration of the remainder of the venire during the selection process. 3. Criminal Law 138 — ordering prison terms to run consecutively — no violation of Fair Sentencing Act The imposition of consecutive sentences for the crimes of rape, first degree sex offense, first degree burglary and armed robbery did not violate either the Fair Sentencing Act or any constitutional proportionality requirement.