Volume 315 — North Carolina Reports

1. Master and Servant 94.2 — workers' compensation — order of dismissal — final adjudication for res judicata purposes An order of dismissal of plaintiffs 1976 workers' compensation claim, entered at the instance of defendants, was by its terms a final adjudication of the merits for res judicata purposes rather than a voluntary dismissal. A reference in the order to a telephone conversation between plaintiff and the hearing officer in which plaintiff by his attorney stated that he did not object to the order dismissing the case did not make the dismissal voluntary. 2. Master and Servant 93; Rules of Civil Procedure 1 — inapplicability of Rules to workers' compensation proceedings The Rules of Civil Procedure are not strictly applicable to proceedings under the Workers' Compensation Act. 3. Master and Servant 85.3, 94.3 — workers' compensation — power of Commission to set aside former judgment The Industrial Commission has inherent power, analogous to that conferred on courts by N.C.G.S. <cross_reference>1A-1</cross_reference>, Rule 60(b)(6), in the exercise of supervision over its own judgments to set aside a former judgment when the paramount interest in achieving a just and proper determination of a claim requires it. N.C. Const. art. IV, 1, 3. 4. Master and Servant 94.2 — workers' compensation — relief from former judgment — failure to make motion Plaintiff is not barred from relief from a 1977 judgment dismissing his workers' compensation claim because he never filed a motion with the Industrial Commission seeking such relief where the Commission awarded plaintiff compensation in his 1980 action and he had no reason to petition the Commission to set aside the 1977 judgment; no opportunity to obtain relief from the 1977 judgment arose until defendants appealed the 1980 award; and when the opportunity did arise, plaintiff asked the Court of Appeals for relief from the 1977 judgment should it find the 1980 award was barred by res judicata 5. Master and Servant 94.3 — workers' compensation — setting aside former judgment — remand to Commission There were sufficient facts in the record to warrant a remand of this case to the Industrial Commission in order for it to consider whether to set aside its 1977 judgment dismissing plaintiffs workers' compensation claim for byssinosis where plaintiff presented evidence tending to show that plaintiff believed the 1977 dismissal of his claim was without prejudice to his right to refile his claim and that his attorney acted without authority when he did not contest the 1977 order dismissing his claim with prejudice.<page_number>Page 128</page_number> 6. Master and Servant 68 — workers' compensation — byssinosis — judgment denying claim not altered by decision law The legislature cannot by enacting 1979 N.C. Sess. Laws ch. 1305 retroactively alter a 1977 judgment of the Industrial Commission that plaintiff had no claim to compensation for byssinosis. Therefore, if the Industrial Commission declines to set aside its 1977 judgment, ch. 1305 will not redeem plaintiffs claim from the bar of res judicata. 7. Master and Servant 68 — workers' compensation — byssinosis — statute of limitations If the Industrial Commission decides to set aside its 1977 judgment dismissing plaintiffs 1976 compensation claim for byssinosis, it will then be in a position to reconsider on the merits plaintiffs 1976 claim which was timely filed within two years after he was informed in 1976 that he had byssinosis. However, if plaintiff must rely on his 1980 claim to compensation for byssinosis, the claim is barred by the two-year period set forth in N.C.G.S. <cross_reference>97-58</cross_reference>(c).

1. Burglary and Unlawful Breakings 3.1 — tool shed — not within curtilage — indictment for burglary should have been quashed An indictment for second degree burglary that specified that defendant broke and entered an unoccupied tool shed at nighttime with felonious intent should have been quashed, and convictions for second degree burglary and felony murder committed during the burglary could not stand, where the shed contained house tools, garden equipment, non-perishable food, and a freezer; was located forty-five feet from the dwelling; and was not within the curtilage of the dwelling house. The visual and auditory proximity of outbuildings that serve the comfort and convenience of the homeowner is a useful theoretical measure of whether those buildings lie within or beyond the curtilage; an outbuilding used to house and secure tools and other items of personal property does not immediately serve the comfort and convenience of those who inhabit the dwelling house. 2. Homicide 4.2 — felony murder — larceny interrupted A homicide victim's death occurred during the perpetration of a larceny, not after its completion, where defendant and his companions had entered a storage shed and removed a chain saw and maul and were checking to see if the house was occupied when the victim approached to investigate. The killing resulted from and was the culmination of defendant's course of conduct. 3. Homicide 4.2 — weapon carried but not used in underlying burglary and larceny — evidence sufficient A killing was effected during the perpetration of a felony committed with the use of a deadly weapon within the definition of N.C.G.S. <cross_reference>14-17</cross_reference> where defendant carried a gun during the commission of a larceny but did not use it to commit the larceny. Possession is enough; moreover, the victim's arrival was an interruption of the larceny, not an event marking its completion, and killing the victim was clearly part of defendant's attempt to escape apprehension for the breaking and entering and theft from the tool shed. <block_quote> 4. Homicide 18.1 — murder during larceny — evidence of premeditation sufficient The evidence supported defendant's conviction for first degree murder based on premeditation where defendant and his companions entered a tool shed and were examining the house to see if it was vacant when the victim approached with a shotgun to investigate; the victim's conduct was not so threatening as to cause defendant and his companions to fear for their lives or to otherwise provoke them; the fact that defendant was even carrying a gun was conduct preceding the murder that evinced defendant's anticipation of a possible confrontation and some forethought of how he would deal with it; once warned of the victim's approach by a companion, defendant had ample time and opportunity to formulate an intent to kill the victim; defendant did not<page_number>Page 192</page_number> shoot the victim immediately, but waited until the victim turned his head; defendant took advantage of the victim's diminished vigilance to draw his own gun and to warn him to "Hold it"; defendant shot the victim as he turned around; the victim fell to the ground and dropped his shotgun after the first shot hit him; defendant fired four more times, three times into the victim's body; and defendant had the presence of mind after the murder to take the victim's gun, agree with the others to keep silent, and later to have the murder weapon melted down.</block_quote> 5. Robbery 4.3 — armed robbery — victim dead — use of force in theft — single transaction — evidence sufficient The evidence was sufficient to support a conviction for armed robbery where defendant took the shotgun the victim had been carrying after killing the victim. When the circumstances of the alleged armed robbery reveal that defendant intended to permanently deprive the owner of his property and the taking was effectuated by the use of a dangerous weapon, it makes no difference whether the intent to steal was formulated before the use of force or after it, so long as the theft and the use or threat of force could be perceived by the jury as constituting a single transaction. N.C.G.S. <cross_reference>14-87</cross_reference>. 6. Criminal law 89; Witnesses 1.3 — State's witnesses abusers of alcohol and drugs — testimony admissible The trial court did not err in a prosecution for murder, robbery, larceny, and burglary by admitting the testimony of defendant's two companions, who were abusers of alcohol and hallucinogenic and psychotropic drugs and who had been impaired by drugs and alcohol on the night in question. A witness is not incompetent to testify on the basis of drug use alone, and the ability of these witnesses to communicate appeared generally adequate; moreover, the trial court's determination that a witness is competent to testify is with good reason within the discretion of that court. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 601(b) (Cum. Supp. 1985). 7. Criminal Law 86.9 — impeachment by State of its own witness — questions designed to clarify testimony — no error In a prosecution for robbery, burglary, larceny, and murder which arose from defendant's shooting of a neighbor who came to investigate with a shotgun after defendant and his companions broke into a tool shed, the court did not err by allowing the State on redirect examination to impeach one of defendant's companions who was testifying for the State. Defense counsel had elicited a broad statement from the witness that he had been scared and shocked, and the State's purpose was to identify more precisely that moment at which the witness was afraid for his life rather than to impeach his cross-examination testimony. 8. Criminal Law 124.4, 135.4 — murder — verdict based on four theories — jury not required to rank theories In a prosecution in which defendant was found guilty of first degree murder based on malice, premeditation and deliberation, murder committed during the perpetration of a burglary, murder committed during the perpetration of felonious breaking or entering, and murder committed<page_number>Page 193</page_number> during the perpetration of felonious larceny, the Supreme Court declined to initiate a rule requiring the jury to rank the theories upon which its murder verdict rested.

1. Deeds 8.1, 9 — obligation in deed — sufficiency of consideration An obligation imposed upon the grantees in a right-of-way deed to maintain an all-weather driveway across the right-of-way constituted sufficient consideration for the deed so that it was not a deed of gift. 2. Easements 8.1 — construction of easement deed In construing a conveyance of an easement, whether or not executed prior to the effective date of N.C.G.S. <cross_reference>39-1.1</cross_reference>, the deed is to be construed in such a way as to effectuate the intention of the parties as gathered from the entire instrument. 3. Deeds 15; Easements 8 — defeasible easement — reversion to owner of servient tract When an easement is granted subject to a condition subsequent, the right of re-entry passes with the fee to the owner of the servient tract. Also, if a determinable easement terminates, it reverts to the owner of the servient tract rather than to the original grantor or his heirs. 4. Adverse Possession 17.1 — defeasible easement — conveyance of land with "all privileges and appurtenances" — reference to deed describing easement — insufficient to constitute color of title Where a 1948 deed conveyed a driveway easement subject to defeasance if the owners of the dominant tract failed to maintain the driveway in an all-weather condition, and the jury found that the driveway was not<page_number>Page 209</page_number> maintained as required, a 1971 deed to defendants' grantors which contained no specific reference to an easement, conveyed the fee with "all privileges and appurtenances thereto belonging," and referred to the description in a previous deed conveying both the land and easement did not constitute color of title because of the "all privileges and appurtenances thereto belonging" language so as to permit defendants to tack possession of their grantors to their possession for four and one-half years under color of title since (1) if the easement was still in existence at the time of execution of the 1971 deed and was in fact appurtenant to the tract conveyed, the deed actually conveyed the defeasible easement and could not constitute color of title to the easement, and (2) if the easement had determined prior to the 1971 conveyance and thus was not in fact appurtenant to the tract conveyed, the inclusion of "all privileges and appurtenances thereto belonging" would not convey the easement. Furthermore, the 1971 deed did not constitute color of title because of its reference to a prior deed containing descriptions of both the land and easement since (1) if the easement had not been extinguished prior to the execution of the 1971 deed, the deed actually conveyed the defeasible easement, and (2) if the easement was extinguished by operation of the limitation in the deed by which it was created, a subsequent deed referencing the deed containing the limitation could not grant more than the referenced deed and thus could not constitute color of title.

Insurance 95.1 — automobile liability insurance — premium notice — manifestation of willingness to renew — termination for nonpayment of premium — notice requirements inapplicable The "Premium Notice" mailed by an automobile liability insurer to the insured constituted a manifestation of the insurer's willingness to renew the policy within the meaning of N.C.G.S. <cross_reference>20-310</cross_reference>(g)(1) so that the notice requirements of N.C.G.S. <cross_reference>20-310</cross_reference>(f) did not apply in order for the policy to be terminated for nonpayment of premium.

1. Insurance 87 — rental car — underaged daughter of lessee driving — violation of rental agreement — coverage required by statute An automobile liability insurance policy issued to a rental car company covered the nineteen-year-old daughter of a lessee despite a provision in the rental agreement which prohibited use of the vehicles by drivers under twenty-one without the lessor's approval because a liability policy issued to an automobile owner in the business of renting cars must comply with the requirements of both N.C.G.S. <cross_reference>20-281</cross_reference> and N.C.G.S. <cross_reference>20-279.21</cross_reference> and provide all the coverages required by those sections. The provision of N.C.G.S. <cross_reference>20-281</cross_reference> requiring an automobile lessor's insurance to cover lessees and their agents is incorporated into defendant's policy to the same extent as if it were written there. 2. Principal and Agent 1 — underage driver of leased car — violation of rental agreement — driver as agent of lessee The nineteen-year-old daughter of an automobile lessee was the agent of the father under the provisions of N.C.G.S. <cross_reference>20-281</cross_reference>, even though the father knowingly violated the rental agreement when he allowed her to operate the rented car, where he asked her to follow him to work so he would have a way home after he returned his employer's truck. 3. Insurance 110 — rented car — underaged driver — liability of insurance company — statutory minimum Defendant was liable for only $5,000 of property damage under an automobile insurance policy where it had provided coverage to a car rental company, a lessee asked his nineteen-year-old daughter to drive the car in violation of the rental agreement, the daughter was involved in an accident in which the plaintiffs bus was damaged, the policy provided $25,000 in property damage coverage, and N.C.G.S. <cross_reference>20-281</cross_reference> required a minimum coverage of $5,000. When an automobile insurance policy providing coverage in amounts in excess of that statutorily required contains some substantive coverages less than those statutorily required, the insurer's liability for an accident for which the statute requires coverage not provided by the policy is limited to the minimum amount required by the statute.

1. Criminal Law 90.2 — impeachment of own witness — Rules of Evidence — prior law Where a State's witness testified on voir dire in response to a question by the court that his identification of defendant was based on his prior photographic identification, the State had the right under G.S. <cross_reference>8C-1</cross_reference>, Rule 607 to elicit contradictory testimony that he based his identification on having seen defendant a week before the crimes and at the time of the crimes. Even under the law as it existed prior to the effective date of the Rules of Evidence, the trial court would have acted well within its discretion in permitting the prosecutor's reexamination of the witness where it is apparent that the witness did not fully comprehend the court's question and that the prosecutor's subsequent questioning was merely an attempt to call facts to the witness's attention which would clear up any confusion and enable him to testify correctly as to the basis of his identification of defendant. 2. Criminal Law 78 — inability to identify assailants — stipulation not violated A stipulation that the female victim would be unable to identify either of her two assailants at trial but would be able to differentiate between the two assailants by referring to them as the "taller" one and the "shorter" one was not violated when the State examined the victim as to whether she had ever seen defendant prior to the night of the offenses or when the victim continually referred to defendant as "the tall one."<page_number>Page 353</page_number> 3. Criminal Law 162 — evidence violating stipulation — absence of objection — no plain error Assuming that a witness's reference to a codefendant by name and by description as "the short one" was objectionable as violating a stipulation that the witness was unable to identify her assailants at trial, defendant's failure to object constituted a waiver of objection under App. Rule 10(b)(1), and the testimony did not constitute plain error entitling defendant to a new trial despite his failure to object. 4. Criminal Law 66.1 — in-court identification — opportunity for observation The male victim had sufficient opportunity to observe defendant to permit his in-court identification of defendant where the victim testified that the two persons who intruded into his home had come to his home a week before the incident in question seeking directions to a local business; they were in the victim's presence for approximately fifteen to twenty minutes on that occasion; on the date of the crimes, the two intruders were in his home for approximately two and one-half hours, and defendant was in his presence for thirty to forty-five minutes; and the lighting conditions inside the victim's home were good and he could see defendant's face clearly. Any discrepancies between the victim's voir dire testimony and his testimony at trial go to the weight to be accorded his testimony rather than to its admissibility. 5. Burglary and Unlawful Breaking 5.8; Larceny 7.8; Rape 5; Robbery 4.3 — first degree rape — breaking or entering — larceny — armed robbery — sufficiency of evidence The State's evidence was sufficient to support submission to the jury of charges against defendant for first degree rape, armed robbery, felonious breaking or entering and larceny, and larceny of an automobile where it tended to show that two men entered the victims' house after assaulting the male victim; the male victim positively identified defendant as one of the intruders; the men carried large bolts as potential weapons and later displayed a firearm; both of the intruders engaged in vaginal intercourse with the female victim against her will after threatening to kill her unless she cooperated; while the victims were tied up in the bathroom, they could hear the two men ransacking their home; after the intruders left, the victims discovered that several items of personal property and their automobile were missing; shortly after the crimes occurred, a witness saw defendant riding in the victims' auto mobile; when the occupants of the automobile discovered that they were being followed, they drove away at a high rate of speed; the occupants eventually abandoned the car and fled on foot; before being apprehended, defendant ran from the arresting officer; and defendant's fingerprints were discovered inside the victims' car.

1. Indictment and Warrant 6.2 — homicide — evidence sufficient for arrest warrant The facts presented to a magistrate were sufficient to support a determination of probable cause to arrest where an officer told the magistrate about the physical details of the crime and the identification of defendant as the perpetrator by an eyewitness who knew defendant. The omission of a prior inconsistent statement by the witness and the fact that the detective interrogating the witness did not believe the rest of his account was not material because the witness had earlier said that he did not know the identity of the perpetrator rather than naming some identifiable person and then changing his story to name defendant, and the detective's suspicions about the witness's<page_number>Page 668</page_number> involvement would not negate the witness's identification of defendant in light of the statement of one of the victims that the witness and another man had been present and that the other man had done the stabbing. 2. Criminal Law 75.1 — delay of two hours in taking defendant before a magistrate — no error There was no unnecessary delay in taking defendant before a magistrate where defendant was arrested at about 3:15 a.m. and taken directly to the police station but was not taken before a magistrate until about 5:00 a.m. Defendant showed no prejudice in that there was no violation of a constitutional right in connection with the delay, the delay was less than two hours, and defendant failed to show that he would not otherwise have confessed. N.C.G.S. <cross_reference>15A-511</cross_reference>(a), N.C.G.S. <cross_reference>15A-974</cross_reference>. 3. Criminal Law 75.3 — defendant confronted by statement of accomplice — confession admissible Defendant was not tricked into making a statement to officers in that he believed an accomplice had confessed even though the accomplice's testimony was exculpatory where the word confessed was suggested by defense counsel; the bulk of the testimony by police officers at the voir dire was that a detective had told defendant that an accomplice had made a statement that implicated defendant; and, considering the witness's differing accounts of what happened on the night in question, his admission to being present at the time his friend committed the offense, and the overall testimony of the witnesses at the voir dire, it cannot be said that defendant was tricked by the officers into making a statement. 4. Criminal Law 75.14 — admission of defendant's statement — mental capacity to waive rights — no error The trial court did not err in a murder prosecution by refusing to suppress defendant's statement based on a lack of mental capacity to understand the statement and waiver of rights forms where the court found, based on competent evidence, that defendant verbally indicated that he understood his rights; that he was not intoxicated and was alert and responsive during questioning; that he responded rationally and understandingly to questions; and that he understood the statement and waiver of rights form. 5. Criminal Law 102.3 — prosecutor's closing argument — failure of court to correct ex mero motu or to give supplemental instruction — no error The trial court did not err by failing to act ex mero motu in a murder prosecution to correct a prosecutor or to grant defendant's motion for a supplemental corrective instruction where, taken in context, the prosecutor in his closing argument was correctly telling the jurors the law on the use of character evidence and reminded them that their oath was to apply the law as it exists. 6. Criminal Law 126.3 — motion to re-poll jury denied — juror wishing to change vote — no error The trial court did not err by denying defendant's motion to re-poll the jury where the clerk polled the jury at defendant's request and each<page_number>Page 669</page_number> juror assented to the verdicts as read; the verdicts as read included a finding that defendant was guilty of murder on theories of premeditation and deliberation and also felony murder; the written verdict found defendant not guilty of felony murder; the clerk brought the discrepancy to the court's attention and the court inquired about which verdict was correct; the jury agreed that the written verdict was correct; defendant declined when the judge asked if he wanted the jury re-polled; the forelady of the jury approached the judge during the sentencing phase and said she wished to change her vote to guilty of second degree murder rather than first degree murder; and defendant moved to re-poll the jury. Defendant's request to re-poll the jury after the juror attempted to change her vote based on testimony presented during sentencing was an attempt to impeach the jury's verdict. N.C.G.S. <cross_reference>15A-1238</cross_reference> (1983). 7. Criminal Law 181.4 — motion for appropriate relief — newly discovered evidence — dismissed Further proceedings in a murder prosecution were dismissed where defendant filed a motion for appropriate relief with the Supreme Court based on new evidence, the motion was remanded to the superior court for an evidentiary hearing, the superior court concluded that the new evidence was unbelievable and denied the motion, and no exceptions to those findings or to the judgment on the motion for appropriate relief were filed with the court.

1. Kidnapping 1.2 — confinement or removal for purpose of terrorizing victim — evidence sufficient The trial judge did not err by submitting a kidnapping charge to the jury on the theory that a purpose for the confinement or removal was to terrorize the victim where the evidence was sufficient to support a finding that defendant intended by his actions to put the victim in a state of intense fright or apprehension so that she would agree to stay with him, and that he removed her to a trailer and confined her there for that purpose. N.C.G.S. <cross_reference>14-39</cross_reference>. 2. Kidnapping 1 — confinement for holding hostage — must be coercion of third party In determining whether the evidence supported a finding that a defendant in a kidnapping case intended to hold his wife as a hostage, evidence of his attempts to coerce her to come back to him was not considered; rather, the determination was whether there was evidence that defendant intended to hold the victim as security for the performance or forbearance of some act by a third person. 3. Kidnapping 1.2 — confinement for purpose of holding hostage — evidence sufficient The evidence in a kidnapping case was sufficient to support a finding that the defendant confined the victim as security for the prevention of his arrest by law enforcement authorities where there was no evidence that defendant intended to hold the victim as a hostage at the time he first removed her from her employer's parking lot but there was evidence from which the jury could have found that defendant confined the victim for the purpose of negotiating his own release once the situation got out of hand. 4. Kidnapping 1.2 — confinement or removal for purpose of inflicting serious bodily harm — evidence not sufficient The trial court erred in a kidnapping prosecution by instructing the jury that it could consider the infliction of serious bodily harm as a purpose for the defendant's confinement or removal of the victim where the only evidence of actual injury was that the defendant struck the victim with a rifle in order to force her to get into the car and thereafter made no attempt to harm her physically. The assault was the means rather than the purpose of the removal. 5. Criminal Law 171 — kidnapping — three theories — one not supported by evidence — new trial A kidnapping prosecution was remanded for a new trial where three underlying purposes for the kidnapping were submitted to the jury, one of the purposes was not supported by the evidence, and the jury did not indicate which purpose formed the basis for its guilty verdict.<page_number>Page 739</page_number>

1. Homicide 21.6; Robbery 4.6 — armed robbery — felony-murder — acting in concert The evidence supported defendant's convictions of armed robbery and felony-murder in a convenience store parking lot under the theory of acting in concert where it tended to show that defendant convinced his twenty-year-old brother and eighteen-year-old friend to participate in a robbery of the convenience store and supplied them with transportation, weapons, socks to cover their hands, and masks; when a car drove into the parking lot during the robbery of the convenience store, defendant ordered his brother, who was serving as the lookout, to keep the passengers out of the store; shortly thereafter, the three gunmen rushed from the store and defendant participated in the robberies of the two victims by helping to surround their car and hold them at gunpoint; defendant's brother shot and killed one of the automobile occupants while robbing him; and defendant drove the getaway car and later distributed the proceeds of the robbery among the three participants. 2. Criminal Law 102.7 — jury argument — opinion as to credibility of witness — no gross impropriety Assuming that the prosecutor's remarks in his jury argument concerning the abilities of a State's witness as an investigating officer amounted to an improper expression of opinion as to the witness's credibility, they were not so grossly improper that the trial judge was required to intervene ex mero motu. 3. Criminal Law 102.6 — jury argument — urging jury to do something about crime The prosecutor did not exceed the bounds of permissible argument by encouraging the jury to consider their obligation to do something about serious crime. 4. Criminal Law 138 — aggravating factors — position of leadership — inducing others — sufficiency of evidence The evidence supported the trial court's findings as factors in aggravation of defendant's punishment for an armed robbery in a convenience store parking lot that defendant occupied a position of leadership or dominance over the other participants in the commission of the offense and that he induced others to commit the crime where the evidence showed that defendant, who was twenty-six years old, convinced his twenty-year-old brother and eighteen-year-old friend to participate in robbing a convenience store and supplied them with transportation, weapons, socks to cover their hands, and masks; defendant later gave specific instructions as to each person's role in executing the convenience store robbery; when a car drove into the parking lot during the convenience store robbery, defendant ordered his brother, who was serving as the lookout, to keep the passengers out of the store; shortly<page_number>Page 774</page_number> thereafter, the three gunmen rushed from the store and defendant participated in the robberies of the car's occupants by helping to surround the car and hold its occupants at gunpoint; and defendant drove the getaway car and later distributed the proceeds of the robbery among the three participants.