Volume 317 — North Carolina Reports

1. Criminal Law 91 — Speedy Trial Act — motion to dismiss denied — prior order granting continuance voidable — collateral attack The trial judge in a prosecution for being an accessory before the fact to murder did not err by denying defendant's Speedy Trial Act motion to dismiss where defendant was tried within 120 days of his indictment if the time covered by a continuance was excluded as required by the order granting the continuance. Defendant took no exception to the order and therefore failed to preserve any error or mistake for appellate review; the trial judge could overrule the prior judge who granted the continuance only if the order was void or<page_number>Page 231</page_number> voidable; the fact that the continuance was granted ex parte may have made it voidable, but not void; and defendant's attack on the order was collateral. N.C.G.S. <cross_reference>15A-701</cross_reference>(b), N.C.G.S. <cross_reference>15A-951</cross_reference>. 2. Criminal Law 10.2 — accessory before the fact to murder — evidence sufficient The trial judge did not err by denying defendant's motion to dismiss in a prosecution for being an accessory before the fact to murder, despite defendant's contention that the State had not proved the element of absence, where a witness testified that he was hired by defendant to shoot the victim; defendant called the witness on 28 February to say that the job had to be done before the next morning; the witness murdered the victim that night; his next contact with defendant was about four days later when he spoke to defendant over the telephone; and the witness went to defendant's house a couple of days later to get his money, at which time defendant asked him questions such as where the victim had been shot and whether the witness had shot him. The State offered ample evidence from which a reasonable inference of defendant's absence could be drawn. 3. Criminal Law 10.1 — accessory before the fact to murder — indictment sufficient An indictment charging defendant with being an accessory before the fact to murder which did not charge that defendant was not present when the murder was committed was sufficient. 4. Criminal Law 10.2 — cross-examination of State's witness — State's objection sustained — no abuse of discretion The trial court did not abuse its discretion in a prosecution for being an accessory before the fact to murder by sustaining objections by the State to two of the questions defendant sought to ask the State's witnesses concerning the impact of the death penalty on their testimony. Defendant was allowed to freely inquire into the extensive criminal past of the State's witness who committed the murder and his plea bargain with the State, and defendant was also allowed to establish that the other witness had been friends with the murderer for several years. 5. Criminal Law 10.3, 111.1 — instructions — charges against codefendant dismissed — no plain error The trial court did not commit plain error in its instructions in a prosecution for being an accessory before the fact to murder where the charges against a codefendant were dismissed at the close of the State's evidence; the court at that time instructed the jury that the case involving the other defendant had been disposed of, that the case against defendant was proceeding, and that the disposition of the other case should not affect the jury's deliberations; and, in the final instructions, the court instructed the jury to consider all of the evidence. Rules of App. Procedure, Rule 10(b)(2).

1. Eminent Domain 5.10 — delay in payment — additional compensation — rate of interest The statutory or legal rate of interest provided by N.C.G.S. <cross_reference>136-113</cross_reference> as the measure of additional compensation for delay in payment in condemnation actions is deemed presumptively reasonable, but the landowner may rebut the rate's reasonableness by introducing evidence of prevailing market rates and demonstrating that the prevailing rates are higher than the statutory rate. 2. Eminent Domain 5.10 — delay in payment — additional compensation — rate of interest — prudent investor standard The "prudent investor" standard is adopted for determining the appropriate interest rate to be used in calculating additional compensation for delay of payment in condemnation actions. Accordingly, in determining the proper rate of interest for delayed payment, the trial<page_number>Page 255</page_number> court shall consider any evidence introduced as to the prevailing interest rates for investments varying in length and risk during the period of delay. 3. Eminent Domain 5.10 — delay in payment — additional compensation — rate of interest — decision by court The trial court rather than the jury may determine the proper rate of interest and the amount to be added to the property owner's award to compensate for loss due to delay of payment in a condemnation action. 4. Eminent Domain 5.10 — delay of payment — additional compensation — compound interest Compound interest rather than simple interest should be allowed for delayed payment in condemnation cases if the evidence shows that during the pertinent period the "prudent investor" could have obtained compound interest in the market place.

1. Rape and Allied Offenses 6; Robbery 5.2 — knife with three or four-inch blade — instruction that knife deadly weapon — no error The trial court did not err in a prosecution for first degree rape, first degree kidnapping, and armed robbery by instructing the jury that a knife was a deadly weapon where there was evidence that the blade was three or four inches long and was held at various times to the victim's throat, side and stomach; defendant threatened to cut off the victim's clothing with the knife; and defendant threatened to cut the victim's throat from ear to ear if she did not comply with his demands. 2. Criminal Law 102.8 — jury argument — State's case uncontradicted — not an impermissible comment on defendant's failure to testify The State's closing argument in a prosecution for rape, kidnapping, and armed robbery did not constitute an impermissible comment on defendant's failure to testify where the prosecutor stated that the State's case was "uncontradicted," that there was "nothing else from this witness stand to show otherwise," and the prosecutor asked the jury to consider the absence of alibi witnesses. 3. Criminal Law 102.6 — prosecutor's jury argument — workload of law officers — no error The State's jury argument in a prosecution for kidnapping, rape and armed robbery referring to the workload of law enforcement officers was not improper where the argument was obviously directed to the anticipated argument by the defendant that the jury should not convict defendant<page_number>Page 284</page_number> because the State failed to produce certain scientific evidence tying defendant to the crime and the remarks were designed to urge the jury to convict on the basis of the evidence presented even if the investigation was not perfect and did not produce all the evidence which a perfect investigation might have produced. 4. Criminal Law 102.6 — jury argument — rights of victims — no prejudice The State's argument to the jury on the rights of victims in a prosecution for kidnapping, rape and armed robbery was not of such gross impropriety as would be likely to influence the verdict of the jury. 5. Kidnapping 1.3 — original instruction on facilitation of felony — repeated instruction on flight — no prejudicial error The trial court did not commit prejudicial error in a prosecution for kidnapping, rape and armed robbery when it first instructed the jury that the State had to prove that defendant confined or restrained the victim for the purpose of facilitating rape and robbery, then, in response to a request for repeated instructions on kidnapping, included facilitation of flight in the instruction. Neither party had requested special instructions at the charge conference; the indictment alleged kidnapping for the commission of a felony and to facilitate flight; it was apparent from the prosecutor's argument and defendant's lack of objection that both parties expected an instruction on facilitating commission of felonies and flight; and the instruction did not change the instructions discussed at the charge conference or the possible verdicts of the jury. N.C.G.S. <cross_reference>15A-1221</cross_reference>, N.C.G.S. <cross_reference>15A-1443</cross_reference>(a). 6. Kidnapping 2; Rape and Allied Offenses 7 — first degree kidnapping and first degree rape — separate punishment — double jeopardy violation Double jeopardy principles preclude separate punishment for first degree rape and first degree kidnapping where the rape is the sexual assault used to elevate kidnapping to first degree.

Narcotics 4.3 — marijuana growing in field — constructive possession — evidence sufficient There was substantial evidence that defendant was in constructive possession of marijuana growing in a field behind his house where, when viewed as a whole and in the light most favorable to the State, the State's evidence tended to show that defendant specifically told officers that he had known marijuana plants were growing behind his residence; defendant had been coming around the house from the general direction of a barn and the marijuana fields when he was first seen by the officers; defendant was wearing work clothes and sweating heavily; the marijuana patches had been intensively cultivated and watered on a regular basis; after defendant was arrested, he clearly demonstrated his intimate knowledge of the terrain where the marijuana patches and barn were located by telling officers the best way to go to the house, warning them in detail of specific obstacles such as ditches and groundhog holes; when officers brought defendant back to the house his mother said to him that she had told him he'd get caught and not to mess with that stuff, to which defendant replied that he had not been caught in the fields or doing anything; paths had been cut through high dense weeds with power machinery from defendant's yard to a barn where marijuana was drying; and, although there was evidence that the marijuana patches could have been reached by a logging road, the road was passable only on foot or by four-wheel drive vehicle and did not lead directly to the marijuana patches. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 803(2) (Cum. Supp. 1985).