Volume 311 — North Carolina Reports

1. Appeal and Error 2 — dissent in Court of Appeals — no dissenting opinion — appellate procedure rules precluding further review by appeal of right In an appeal from a decision of the Court of Appeals where one judge dissented without filing a dissenting opinion, pursuant to App. R. 16 (b) which limits review of the Court of Appeals' decision to the issues which were specifically set out in the dissenting opinion, further review by appeal of right was precluded. 2. Contracts 6.15 — clearing and grading work on farm — not within license requirement for general contractor Plaintiff's work in clearing and grading land for agricultural purposes did not bring it within the provisions of G.S. <cross_reference>87-10</cross_reference> which requires a general contractor to have a license and the provisions of G.S. <cross_reference>87-1</cross_reference> and <cross_reference>87-13</cross_reference> did not apply. 3. Principal and Agent 6 — ratification of act of agent by principal — estoppel — jury issue In an action for monies allegedly due for work performed on a farm, the trial court erred in granting summary judgment for a defendant<page_number>Page 171</page_number> where there was a conflict in the evidence as to whether the femme defendant's former husband acted as her agent and as to whether a careful and prudent person might perceive that the femme defendant's former husband had the authority to contract for the work on the farm and that the farm defendant ratified these acts.

1. Criminal Law 15.1 — denial of motion for change of venue — no error The trial court did not abuse its discretion in denying defendant's motion for a change of venue or in the alternative a special jury venire, and for an individual voir dire of the jury on the grounds of "undue, prejudicial and inflammatory publicity concerning the defendant and matters inadmissible at trial, the widespread reputation of the prosecuting witness in the small community of Burgaw and the general occurrence of conversation among the population about the alleged crimes." The two local newspapers each printed one story about the crimes, both appearing five months prior to trial; defendant did not contend in his brief that these articles were inflammatory or not factual; although the State conceded that there was pervasive word-of-mouth publicity in Pender County regarding the crime, defendant called thirteen witnesses, none of whom testified that the defendant could not get a fair trial in Pender County; and mere exposure to publicity concerning a case, be it through mass media or general conversation, does not of itself render a prospective juror biased or establish that he has preconceived opinions about the case. 2. Constitutional Law 62 — denial of individual voir dire of prospective jurors — no abuse of discretion The trial court did not abuse its discretion in denying an individual voir dire of prospective jurors in a prosecution for first-degree rape where the venue hearing evidence failed to support the claim of identifiable prejudice and where all jurors selected to hear defendant's case affirmatively stated that they had no preconceived opinions about the case and could give defendant a fair trial based only on evidence presented in court. 3. Criminal Law 66.20 — in-court identification — findings on voir dire supported by evidence The trial court's findings on voir dire to determine the competency and admissibility of the prosecuting witness' in court identification, where the prosecuting witness had previously failed to make a positive identification of the defendant during a photographic or physical lineup, were supported by competent evidence, and were conclusive on appeal. 4. Searches and Seizures 11 — search and seizure of vehicle proper A trial court properly found that the stop and detention of defendant did not violate any of defendant's constitutional rights, and that the search incident to the arrest was valid where the evidence tended to show that a police sergeant on routine patrol observed defendant parking in a no parking area; the sergeant drove past defendant and made eye contact with him; the officer was of the opinion that the defendant was intoxicated and he drove to a position where he could observe defendant and possibly follow him to determine whether he was in fact intoxicated; defendant drove away followed by<page_number>Page 239</page_number> the officer; when defendant failed to respond to the blue light, the sergeant used his siren to stop him; defendant did not have his operator's license; and since the vehicle was stolen, defendant presented no evidence showing any legitimate property or possessory interest in the automobile.

1. Criminal Law 138 — aggravating circumstance that offense was especially heinous, atrocious, or cruel — properly considered In a prosecution in which defendant was convicted of the second-degree murder of his wife, the trial court properly considered that the offense was especially heinous, atrocious, or cruel where the evidence tended to show a total of ten bullets were fired into the victim's body; there was ample evidence that the victim was not killed by the first shots; she managed to move from room to room in the house leaving a trail of blood behind her, clearly undergoing fear and pain in the process; death was not instantaneous; and the evidence fully supported a finding that the victim suffered a degree of pain and psychological suffering not normally present in every murder. G.S. 15A-1340.4 (a)(1)f. 2. Criminal Law 138 — failure to find in mitigation that defendant was suffering from a mental condition — no error There was no error in the trial court's failure to find in mitigation that defendant was suffering from a mental condition, insufficient to constitute a defense, but significantly reducing his culpability where the evidence was both conflicting and inconclusive with respect to any connection between the murder and defendant's alleged mental problems accompanying military duty in Vietnam 15 years earlier. 3. Criminal Law 138 — failure to find as mitigating factor that defendant acted under strong provocation — no error In a prosecution for the murder of defendant's wife, the trial court did not err in failing to find in mitigation that the defendant acted under strong provocation or that the relationship between the defendant and the victim was otherwise extenuating since a relationship between husband and wife, including marital difficulties in the past, is not sufficient, standing alone, to support a finding of this mitigating factor, and since the only evidence of "provocation" in this case was defendant's learning of the victim's decision to leave the marital home and his finding a cigarette butt in an ashtray, ostensibly indicating that someone other than the defendant or his wife had at some point visited the house.<page_number>Page 253</page_number> 4. Criminal Law 138 — finding aggravating factor outweighed mitigating factors — no error There was no abuse of discretion in the trial judge sentencing defendant to life imprisonment where he weighed the aggravating factor that the murder was especially heinous, atrocious, or cruel, against two mitigating factors: that defendant voluntarily acknowledged wrongdoing, and that defendant has been a person of good character.

Witnesses 5.2 — character evidence offered by defendant physician improperly allowed Character evidence offered by defendant physician was inadmissible for the reason that it was not limited to the doctor's reputation where a witness testified to his opinion of defendant based on his personal knowledge rather than what he knew, if anything, about defendant's reputation.

1. Constitutional Law 43; Jury 6 — jury selection — right to counsel Defendant's right to counsel extends to the entire trial. This is especially true at critical stages of the proceeding, and selection of the jury is a critical stage of the trial. 2. Constitutional Law 43; Jury 6 — right to counsel during entire jury voir dire It is essential that counsel be present during the entire jury voir dire so that he may intelligently exercise defendant's right to peremptory challenges. 3. Constitutional Law 43; Jury 6 — right to counsel — absence of counsel during State's questioning of jurors Defendant's right to counsel was violated during the jury selection process when his counsel was not present during the State's questioning of the jurors, and such constitutional error was prejudicial to defendant. Sixth Amendment to the U.S. Const.; Art I, 23 of the N.C. Constitution, G.S. <cross_reference>15A-1443</cross_reference> (b).

Criminal Law 111.1 — identification instructions — sufficient The trial court gave adequate identification instructions in a prosecution for robbery with a dangerous weapon where the only eyewitness to the crime testified that he recognized the defendant from having seen him both in the store and on the street on prior occasions; his identification of the defendant did not occur after the offense was committed nor was it even based merely on a brief observance at the scene of the crime; and the requested instructions of the defendant were inapplicable under the facts of the case.

1. Constitutional Law 51 — speedy trial — pre-indictment delay — investigative delay justified In a prosecution for first-degree murder, where the crime took place on 6 May 1975 but where defendant was not indicted until 14 December 1981, from the record, the Court concluded that the pre-indictment delay was attributable to an ongoing investigation of the case, and therefore, that the delay was reasonable, justified and for legitimate purposes. Defendant's only allegations of prejudice concerned claims of faded memory and evidentiary difficulties inherent in any delay, and the allegations were insufficient to find his constitutional due process right to a speedy trial was violated. G.S. <cross_reference>15A-954</cross_reference> (a)(3). 2. Constitutional Law 51 — denial of motion to dismiss for pre-indictment delay — no error — allegations of prejudice insufficient to justify motion There was no error in the trial court's denial of defendant's motion to dismiss for pre-indictment delay pursuant to G.S. <cross_reference>15A-954</cross_reference> (a)(3) on grounds that his motion contained only conjectural and conclusory allegations of possible prejudice or deliberate and unnecessary delay on the part of the prosecution where defendant made only general allegations of faded memory and lost witnesses, and where he did not indicate how he had been prejudiced by the additional length of the delay. Further, contrary to defendant's claim, in the absence of a showing of actual prejudice, our courts should consider dismissal in cases of serious crime with extreme caution. 3. Constitutional Law 51 — pre-indictment delay — no evidentiary hearing on motion to dismiss — no error There was no error in failing to provide defendant with an evidentiary hearing on his motion to dismiss on the basis of a pre-indictment delay where defendant's motion contained no factual allegations which merited further inquiry. 4. Constitutional Law 31 — denial of a motion for funds to hire private investigator — no error The trial judge did not abuse his discretion in denying defendant's motion for funds to hire a private investigator where defendant failed to demonstrate that "the State's failure to provide funds with which to hire an investigator substantially prejudiced his ability to obtain a fair trial." 5. Constitutional Law 30 — in camera inspection of the evidence — procedures complied with In a prosecution for first-degree murder, the trial court fully complied with the mandates of State v. Hardy, and G.S. <cross_reference>15A-904</cross_reference> (a) in ruling on defendant's motion requesting an in camera inspection of evidence in the State's possession where the record disclosed that the State voluntarily provided defense counsel with prior statements of<page_number>Page 339</page_number> the testifying witnesses following their direct examination, and with respect to the one statement which the State did not voluntarily provide, the trial judge reviewed the evidence in camera and sealed the excluded evidence and placed it in the record for appellate review. 6. Criminal Law 97.1 — recalling witnesses to corroborate the testimony — no abuse of discretion The trial judge acted well within his discretion in permitting a detective to be recalled and questioned to corroborate testimony of other witnesses since the manner and presentation of evidence is largely within the discretion of the trial judge and his control of the case will not be disturbed absent a manifest abuse of discretion.

1. Indictment and Warrant 13.1 — rape of child — date of offense — denial of motion for more definite bill of particulars In a prosecution for first-degree rape of a child in which the indictment charged that the crime occurred "on or about March 15, 1983" and the State responded to a motion for a bill of particulars that the specific date was unknown because of the age of the victim and the ongoing nature of the offense, the trial court did not abuse its discretion in the denial of defendant's pretrial oral motion for a more definite bill of particulars providing the specific time and date of the alleged rape where the victim testified that the offense occurred two days before her March 16 birthday, defendant presented evidence of his lack of access to the child from March 11 to March 16, and defendant thus showed no prejudice attributable to the lack of information about the exact date of the alleged rape. G.S. <cross_reference>15A-925</cross_reference> (c). 2. Indictment and Warrant 17.2; Rape and Allied Offenses 5 — rape of child — date of offense — not fatal variance between indictment and proof There was no fatal variance between an indictment charging the rape of a child "on or about March 15, 1983" and evidence that the rape occurred on March 14 where defendant was not ensnared or deprived of the opportunity to present an alibi defense in that defendant testified that he was elsewhere and had no access to the victim on March 14 or for a considerable number of days before and after that date, and alibi witnesses testified to defendant's lack of access to the child for the period between March 11 and March 16.<page_number>Page 371</page_number> 3. Indictment and Warrant 9.11; Rape and Allied Offenses 3 — indictment for rape — statement of date of offense — effect of statutes The provisions of G.S. <cross_reference>15-144.1</cross_reference> (a) requiring the inclusion of the date of the offense in an indictment for rape do not prevail over the provisions of G.S. <cross_reference>15-155</cross_reference> which expressly excuse the failure to state an exact date. 4. Witnesses 1.2 — competency of child rape victim to testify The trial court did not abuse its discretion in declaring an eight-year-old rape victim competent to testify where the child indicated that she knew the difference between telling the truth and lying, that she knew that punishment would result from telling a lie, and that she knew she was supposed to tell the truth when she put her hand on the Bible, and where she answered questions about her schooling, family, church attendance, and previous court testimony. 5. Criminal Law 34.8 — evidence of other crimes — competency to show common plan or scheme In a prosecution for first-degree rape of a child, testimony by the child that defendant had engaged in sexual intercourse with her on a date prior to the incident for which defendant was on trial was competent to show a common plan or scheme embracing the commission of a series of crimes so related to each other that proof of one or more tended to prove the crime charged and to connect the accused with its commission. 6 Criminal Law 73.1 — double hearsay — harmless error Assuming that a physician's testimony that a child rape victim's natural father told him that "the girl had told him that this (rape) is what happened, that it had happened frequently" was inadmissible hearsay within hearsay, the admission of such testimony was harmless error in light of the other similar evidence admitted properly against defendant and his reliance on the defense of alibi rather than a defense that the rape of the child never occurred. 7. Criminal Law 33.3; Rape and Allied Offenses 4 — child abuse petition by social worker — irrelevancy — admission of testimony as harmless error In a prosecution for the rape of a child, assuming that testimony by a social worker that she had filed a child abuse petition after investigating and learning about the facts of the case at bar was irrelevant, its admission was harmless error where defendant failed to show that there was a reasonable possibility that a different result would have been reached at trial had the testimony not been allowed. 8. Rape and Allied Offenses 7 — first-degree rape — life sentence as minimum and maximum terms The trial court did not err in imposing a sentence of not less than and not more than life imprisonment for first-degree rape. G.S. <cross_reference>15A-1340.1</cross_reference> (a); G.S. <cross_reference>15A-1351</cross_reference> (b).

1. Criminal Law 87; Witnesses 7 — incompetency of hypnotically refreshed testimony Hypnotically refreshed testimony is too unreliable to be used as evidence in judicial proceedings. The contrary decision of State v. McQueen, <cross_reference>295 N.C. 96</cross_reference>, is overruled. 2. Criminal Law 87; Witnesses 7 — hypnotized witness — testimony as to facts related before hypnosis A person who has been hypnotized may testify as to facts which he related before the hypnotic session, and when a party attempts to offer testimony by a person who has been hypnotized, that party will bear the burden of proving that the proper testimony was related prior to hypnosis. Furthermore, a party proffering the testimony of a previously hypnotized subject is under a duty to disclose the fact of this hypnosis to the court and counsel outside the presence of the jury and before the testimony of the witness. 3. Criminal Law 87; Witnesses 7 — incompetency of hypnotically refreshed testimony — retroactivity The holding in this case that hypnotically refreshed testimony is inadmissible will apply only to cases which have not been finally determined on direct appeal as of the certification date of this decision. It may not be used as the basis for collaterally attacking any case which has been finally determined on direct appeal or in which no appeal was taken from the trial judgment. 4. Criminal Law 87; Witnesses 7 — incompetency of hypnotically refreshed testimony — retroactivity — harmless error rule In applying the rule on the inadmissibility of hypnotically refreshed testimony retroactively to all cases which have not been finally determined on direct appeal as of the date on which this opinion is certified, the appellate court will examine each appeal on a case-by-case basis to determine if the error was reversible, i.e., whether a reasonable possibility exists that a different result would have been reached at the trial had the evidence not been erroneously admitted.<page_number>Page 516</page_number> 5. Criminal Law 87; Witnesses 7 — incompetency of hypnotically refreshed testimony and video tape — prejudicial error In this armed robbery prosecution, the admission of a witness's hypnotically refreshed testimony and a video tape recording of the hypnotic session constituted prejudicial error since a reasonable possibility exists that a different result would have been reached had this evidence not been admitted at defendant's trial.

Judgments 44; Parent and Child 9 — conviction for refusal to support children — paternity issue in civil action — collateral estoppel Defendant's criminal conviction under G.S. <cross_reference>14-322</cross_reference> for the willful neglect of and refusal to support his minor children collaterally estopped him from relitigating the issue of paternity in a subsequent civil action by the State for indemnification of its payments of support to defendant's children and for a continuing order of support by defendant since defendant's conviction under G.S. <cross_reference>14-322</cross_reference> necessarily required a finding that he was the father of the minor children, and the State in the civil action was identical to or in privity with the State in the prior criminal action.