Volume 312 — North Carolina Reports

1. Automobiles and Other Vehicles 11.5, 75.1 — hitting parked vehicle — contributory negligence — evidence sufficient There was sufficient evidence from which a jury could find contributory negligence by plaintiff on the basis of negligence per se or ordinary common law negligence where defendant's evidence tended to show that plaintiff's truck was standing at least two feet onto the paved portion of the highway; that it was possible for defendant to park his truck on the opposite shoulder, which was more than wide enough to accommodate the entire width of the<page_number>Page 182</page_number> truck; that the stop was not for a necessary purpose under G.S. <cross_reference>20-161</cross_reference> (a) as a matter of law; and that the accident occurred on a rural road outside a municipality. 2. Automobiles and Other Vehicles 11.5, 75.1 — hitting parked vehicle — contributory negligence per se — proximate cause The trial court erred in failing to submit to the jury the issue of causation based on plaintiffs negligence per se where a jury could reasonably infer from the facts that plaintiff negligently stopped his truck partially on the main traveled portion of the highway; that without this original negligence, the collision would not have occurred; and that the subsequent injury was clearly foreseeable, given the defendant's failure to keep a proper lookout and decrease his speed to avoid colliding with a vehicle on the highway. G.S. <cross_reference>20-161</cross_reference>. 3. Automobiles and Other Vehicles 11.5, 75.1 — hitting parked vehicle — common law contributory negligence — proximate cause The trial court erred in failing to submit the issue of causation based on plaintiffs common law negligence where there was evidence from which the jury could find that in the exercise of reasonable care and foresight plaintiff could have foreseen that parking on the narrower shoulder, partly on the pavement on the westbound lane of a two-lane paved highway, at sunset, would result in a collision with a vehicle whose driver was blinded by the bright setting sun, and that he was negligent in not choosing a more favorable place to park and attend to his tailgate. G.S. <cross_reference>20-161</cross_reference>.

1. Searches and Seizures 7 — search incident to lawful arrest A search without a search warrant may be made incident to a lawful arrest. In the course of such a search, the officer may lawfully take from the person arrested any property which such person has about him and which is connected with the crime charged, including the contents of handbags or wallets. 2. Arrest and Bail 3.1 — warrantless arrest — necessity for probable cause To be lawful, a warrantless arrest must be supported by probable cause. 3. Arrest and Bail 3 — time of defendant's arrest Although an officer stated that defendant was not placed under arrest while he was in Tennessee and that defendant was just being formally detained, defendant was, in effect, placed under arrest when he was escorted from the Knoxville bus station to the Knoxville Police Department where the officer admitted that he "would not have let [the defendant] go." 4. Arrest and Bail 3.1 — probable cause for arrest — bulletins from other officers One law enforcement officer may rely upon bulletins from other officers as the basis for an arrest, but only so long as the originating officer himself has probable cause. 5. Arrest and Bail 3.1 — requisites of probable cause Probable cause is a flexible, common-sense standard. It does not demand any showing that such a belief be correct or more likely true than false; rather, a practical, nontechnical probability is all that is required.<page_number>Page 252</page_number> 6. Searches and Seizures 8 — search incident to arrest — probable cause for arrest in Tennessee — knowledge by North Carolina officers North Carolina law enforcement officials had probable cause to believe that defendant had committed the felonies of rape and murder of a seven-year-old child, and the warrantless search of defendant while he was detained in Knoxville, Tennessee at the request of North Carolina authorities was proper as being incident to defendant's lawful arrest by Tennessee officers pursuant to information received from North Carolina authorities, where the crimes occurred on a farm in a small, rural community, and where North Carolina officers knew that the victim's grandfather had seen defendant, who had previously been employed on the farm, going toward the farm in a taxicab on the morning of the crimes, that the taxicab driver had identified defendant as the person he had taken to the farm that morning, and that defendant had fled on a bus destined for Arkansas a few hours after the crimes. 7. Arrest and Bail 3.1; Searches and Seizures 8 — probable cause for arrest — consideration of flight to evade arrest Flight to evade arrest is a strong idicia of mens rea, and when coupled with other relevant facts or the specific knowledge on the part of the arresting officer relating the suspect to the evidence of the crime, flight may properly be considered in assessing probable cause.

Searches and Seizures 10 — evidence in plain view at crime scene — no warrant necessary Where a law enforcement officer enters private premises in response to a call for help, thereby comes upon what reasonably appears to be the scene of a crime, and secures the crime scene from persons other than law enforcement officers by appropriate means, all property within the crime scene in plain view which the officer has probable cause to associate with criminal activity is thereby seized within the meaning of the Fourth Amendment. Officers arriving at the crime scene thereafter and while it is still secured can examine and remove property in plain view without a search warrant.<page_number>Page 297</page_number>

Criminal Law 40.2 — retrial of indigent defendant — failure to provide transcript of first trial The retrial of an indigent defendant on rape, burglary and larceny charges without providing him with a transcript of his original trial was error entitling him to a new trial where defendant's first trial ended in a mistrial when the jury was unable to agree; the trial judge allowed defendant's motion for a transcript of his trial; defendant again moved prior to a second trial that he be given a transcript of his first trial before being retried; the court reporter advised the court that she had not had time to prepare the transcript; and the court then denied defendant's motion without evidence or findings that defendant had no need for a transcript or that there was available to defendant a substantially equivalent alternative.<page_number>Page 323</page_number>

1. Automobiles and Other Vehicles 125 — driving while impaired — sufficiency of citation A citation which charged that defendant did "unlawfully and willfully operate a motor vehicle on a street or highway while subject to an impairing substance. G.S. <cross_reference>20-138.1</cross_reference>" met the statutory requirements of G.S. <cross_reference>20-138.1</cross_reference> (c). 2. Indictment and Warrant 7.1 — form of citation — legislative power The legislature has the power, within constitutional parameters, to prescribe the manner in which a criminal charge can be stated in a pleading. 3. Automobiles and Other Vehicles 125 — driving while impaired — citation not ambiguous A citation charging the operation of a motor vehicle "while subject to an impairing substance" satisfied statutory and constitutional standards of certainty because "subject to an impairing substance" is so clear and distinct that a person of common understanding would know what was intended. G.S. <cross_reference>15-153</cross_reference>; G.S. <cross_reference>20-4.01</cross_reference> (14a). 4. Automobiles and Other Vehicles 125 — driving while impaired — citation — driving synonymous with operating A citation charging defendant with operating rather than driving a motor vehicle need not be quashed because the legislature intended "driver" and "operator" to be synonymous, and because the use of "operate" is not so great a refinement on the statutory short form pleading as to render the charge unintelligible. G.S. <cross_reference>20-138.1</cross_reference>; G.S. <cross_reference>20-4.01</cross_reference> (7), (25). 5. Automobiles and Other Vehicles 125 — driving while impaired — citation sufficiently specific A citation which charged driving while subject to an impairing substance was sufficient without specifying the evidence the State would present regarding the impairing substance or stating whether the State intended to proceed under a theory of driving while under the influence or driving with a blood alcohol content of .10 where the General Assembly clearly intended to combine the formerly separate offenses, the State is not required to plead evidentiary matters, and the citation was sufficient to inform the defendant of the charge so that he could prepare a defense, to inform the court of the judgment to pronounce in the event of conviction, and to protect defendant from subsequent prosecution for the same offense. G.S. <cross_reference>20-138.1</cross_reference> (c); G.S. <cross_reference>20-4.01</cross_reference> (14a); G.S. <cross_reference>15-144</cross_reference>.

1. Automobiles and Other Vehicles 126.3; Constitutional Law 43 — breathalyzer test — statute allowing 30 minutes to obtain counsel — constitutionality The administration of a chemical analysis to determine if a driver is acting under the influence of an impairing substance is not a critical stage of the prosecution entitling defendant to the presence of counsel; therefore, the statute allowing a defendant only 30 minutes to obtain counsel before undergoing a chemical analysis, G.S. <cross_reference>20-16.2</cross_reference> (a), does not violate defendant's right to counsel guaranteed by the Sixth and Fourteenth Amendments to the U.S. Constitution and Art. I, 23 of the N.C. Constitution. 2. Automobiles and Other Vehicles 126.4 — breathalyzer test — no right to constitutional warnings Defendant was not entitled to be informed of his constitutional rights before undergoing a breathalyzer test since the results of the test are not evidence of a testimonial or communicative nature. 3. Automobiles and Other Vehicles 126.2 — driving while impaired — requirement of two breathalyzer tests after 1 January 1985 — equal protection A defendant charged with driving while impaired prior to 1 January 1985 was not denied equal protection of the laws because only one chemical breath analysis was required whereas a person charged with driving while impaired after 1 January 1985 must be given two chemical breath tests, since G.S. <cross_reference>20-139.1</cross_reference> (b3) merely treats the same group of people in different ways at different times. Fourteenth Amendment to the U.S. Constitution; Art. I, 19 of the N.C. Constitution. 4. Automobiles and Other Vehicles 120 — driving while impaired — alcohol concentration of 0.10 or more — validity of statute The statute making it a crime for persons to have an alcohol concentration of 0.10 or more at any relevant time after driving on the highways or public vehicular areas of this State, G.S. <cross_reference>20-138.1</cross_reference> (a)(2), merely sets forth the elements of the offense and does not impermissibly declare individuals with an alcohol concentration of 0.10 or more to be presumptively guilty of a crime. 5. Automobiles and Other Vehicles 120 — driving while impaired — statute not void for vagueness G.S. <cross_reference>20-138.1</cross_reference> (a)(2) is not void for vagueness because a potential violator has no means of measuring the level of alcohol in his system and does not have a fair warning of when he has crossed the 0.10 level of alcohol concentration. 6. Automobiles and Other Vehicles 126.3 — breathalyzer test — improper maintenance of machine — burden of proof on defendant — constitutionality The statute putting the burden on defendant to object and show that a breathalyzer machine had not been maintained in accordance with<page_number>Page 455</page_number> regulations of the Commission for Health Services, G.S. <cross_reference>20-139.1</cross_reference> (b2), does not violate the rule of Mullaney v. Wilbur, <cross_reference>421 U.S. 684</cross_reference>, since the absence of proper maintenance is not an essential element of the offense of driving while impaired but is an affirmative defense, and the State may permissibly put the burden of establishing affirmative defenses on defendant.

Divorce and Alimony 20.3 — award of counsel fees — insufficient findings In an action involving divorce, alimony, and child custody and support in which defendant wife's attorneys submitted an affidavit showing the value of their services to be in excess of $55,000, the trial court's findings of fact in its order awarding attorney fees of $6,750 to defendant wife were insufficient to provide a basis for determining the reasonableness of the fees awarded, and the case must be remanded for further findings, where the court stated that it had considered the time and labor required to represent the defendant but failed to find how many hours of labor were actually expended on defendant's behalf by her attorneys; one of the listed considerations of the trial court was the customary charge for similar services, but the court never stated what it found the customary charge to be or whether the charge by defendant's attorneys was in line with the customary fee; and although the court recited as one of its considerations "the novelty and difficulty of the questions of law, and the skill requisite to the proper representation of the defendant," the court did not state how it adjudged the difficulty of the legal questions or the adequacy of the representation.

1. Criminal Law 75, 84 — revocation of plea arrangement — confession not involuntary — testimony not fruit of poisonous tree Defendant's statement given as a result of a plea arrangement was not involuntary because the plea arrangement was subsequently revoked when defendant violated a condition thereof where defendant was at all times represented by counsel, was fully advised of his rights, and was not coerced or induced into making the statement. Therefore, even if a portion of the testimony of defendant's daughter was based on information taken from defendant's statement, such testimony was not inadmissible as "fruit of the poisonous tree." 2. Criminal Law 114.2 — instruction on witness as accomplice — no expression of opinion The trial court's instruction that the evidence tended to show that a witness "was an accomplice in the commission of these crimes that are charged" did not constitute an expression of opinion that the crimes had, in fact, been committed. 3. Criminal Law 92.5 — failure to renew motion for severance Failure to renew a motion for severance as required by G.S. <cross_reference>15A-927</cross_reference> (a)(2) waived any right to severance, and review was limited to whether the trial court abused its discretion in ordering joinder at the time of the trial court's decision. 4. Criminal Law 92.1 — consolidation of charges against three defendants The trial court did not abuse its discretion in allowing consolidation and joinder of murder and attempted armed robbery charges against three defendants where the State's motion for joinder was based on the theory that all three defendants formed a scheme to murder the victim and steal his money. G.S. <cross_reference>15A-926</cross_reference> (a). 5. Criminal Law 113.7 — charge on aiding and abetting The trial court's instruction that in order to find the two codefendants guilty of aiding and abetting an attempted armed robbery and a second-degree murder, the jury must first find that the armed robbery was in fact attempted and the murder was committed by defendant properly conformed to the evidence as presented, and the court did not commit plain error in failing to instruct that the codefendants could be convicted if the jury found that defendant "or some other person" was the perpetrator of the crimes. 6. Criminal Law 101.4 — jury examination of documents containing markings Defendant failed to show that the trial court abused its discretion in permitting the jury to examine certain documents because<page_number>Page 568</page_number> they contained markings or underlining where the record did not indicate what markings appeared on the documents, the jury was instructed to ignore underlining on one document, and the court fully complied with the procedures set forth in G.S. <cross_reference>15A-1233</cross_reference> (a). 7. Arrest and Bail 9.1 — breach of condition of bail bond — revocation of bond Defendant's violation of a condition of her release on bond that she have no contact with a male codefendant was a legitimate reason for the trial court's exercise of its discretion to revoke her bond. G.S. <cross_reference>15A-534</cross_reference> (f). 8. Homicide 12 — propriety of murder indictment A murder indictment in the form prescribed by G.S. <cross_reference>15-144</cross_reference> was proper although it alleged both a capital and a non-capital offense and thereby failed to inform defendant of the precise charge against which she would be required to defend at trial. 9. Conspiracy 5.1; Criminal Law 79 — admissibility of statements by coconspirators There was sufficient evidence to establish the existence of a conspiracy to murder the female defendant's husband and that the female defendant was one of the conspirators, and statements of the two male codefendants made in furtherance of the conspiracy were competent evidence against the female defendant. 10. Criminal Law 69, 99.2 — telephone conversation — admissibility — propriety of court's questions A witness was properly permitted to testify regarding a telephone conversation with the female defendant tending to show her complicity in the murder of her husband, and the trial court did not err in asking the witness questions to clarify the witness's identification of the second party to the telephone conversation. 11. Criminal Law 99.4 — court's comments upon ruling on objections — no expression of opinion The trial judge did not improperly express an opinion on the quality of counsel's objections when, upon complaint by counsel that he couldn't understand a witness, he commented, "Well, no wonder, you object every time she opens her mouth. But you're entitled to make your objection," or when he remarked to counsel for two defendants who were objecting simultaneously to the witness's testimony that "when you object one time, let the witness finish her answer and then make your motion to strike." The trial judge's comments were well within his discretion in an effort to control the conduct of the trial and promote an orderly examination of the witness. 12. Criminal Law 79.1, 87.4 — statement by coconspirator — opening of door by defendant — veracity of statement proper subject for redirect The trial court properly allowed into evidence during redirect examination a pretrial statement made by the witness implicating herself, defendant and a codefendant in a murder where defendant opened the door to evidence concerning the statement on cross-examination of the witness. Furthermore,<page_number>Page 569</page_number> the prosecutor's question to the witness concerning the veracity of the statement was a proper subject for redirect examination. 13. Criminal Law 79 — acts or declarations by coconspirators The testimony of three witnesses, in addition to corroborating another witness's testimony, was admissible as relating to acts or declarations by conspirators in furtherance of a conspiracy to murder the female defendant's husband. 14. Criminal Law 138 — mitigating factors — passive participant — advanced age — supporting spouse — insufficient evidence The trial court did not err in failing to find as factors in mitigation of the second-degree murder of defendant's husband that defendant was a passive participant, that she was a female of advanced years, and that she was the primary supporting spouse of the family since (1) the evidence did not compel a finding that defendant was a passive participant, (2) the defendant's age of fifty-three years would not support a finding in mitigation of the crime charged, and (3) the fact that defendant was the primary supporting spouse bears little relevance in mitigation of the crime charged. 15. Criminal Law 138 — mitigating factor — no prior criminal record — necessity for finding The trial court erred in failing to find as a factor in mitigation of a second-degree murder that the female defendant had no record of criminal convictions where the prosecutor stipulated, in response to a question by the court as to whether any of the three defendants had a prior criminal record, that only a male codefendant had a prior criminal record.

Physicians, Surgeons, and Allied Professions 13 — medical malpractice — statute of limitations — meaning of non-apparent injury As used in the discovery exception for non-apparent injuries in the statute of limitations for malpractice actions, G.S. <cross_reference>1-15</cross_reference> (c), the term "bodily injury" denotes an awareness by plaintiff that wrongful or negligent conduct was involved in addition to the fact of his or her injury by defendant. Therefore, plaintiffs discovery of defendant's failure to inform her of the availability of a drug as a less drastic alternative to the hysterectomy performed by defendant physician on plaintiff more than two years earlier qualified as discovery of a non-apparent "injury" which comes within the one-year discovery provision of G.S. <cross_reference>1-15</cross_reference> (c), and plaintiffs malpractice action was not barred by G.S. <cross_reference>1-15</cross_reference> (c) where the complaint was filed within one year after plaintiff discovered defendant's wrongful conduct or negligence and within four years from the last act of defendant when he performed the surgery.