Volume 318 — North Carolina Reports

1. Criminal Law 92.1 — conspiracy to commit murder — joinder of offenses against two defendants proper The trial court did not err in granting the State's motion for joinder of defendant with a murder victim's husband for trial and in refusing to grant defendant's motions for severance, since both defendant and the victim's husband were charged with conspiracy to murder the victim; all of the offenses arose out of the scheme or plan to effectuate her murder; and joinder was thus proper. Furthermore, defendant and the victim's husband did not have antagonistic defenses, and defendant's being tried with the victim's husband did not create a risk of conviction on the basis of guilt by association. N.C.G.S. <cross_reference>15A-926</cross_reference>(b)(2); N.C.G.S. <cross_reference>15A-927</cross_reference>(c)(2)a and b. 2. Criminal Law 89.8 — plea agreement with witness — defendant's right to be informed not violated Defendant's rights under N.C.G.S. <cross_reference>15A-1054</cross_reference>(c) and his constitutional due process rights were not violated by the district attorney's alleged failure to disclose a plea agreement with a witness who testified against defendant, since there was no formal agreement between the State and the witness; defendant's counsel was aware sufficiently in advance of trial that the witness was going to testify for the State under a hope of leniency to have brought out in cross-examination the circumstances under which the testimony was being offered; and evidence that the witness entered a guilty plea pursuant to a plea bargain after he testified did not show that the district attorney's statement with regard to no plea bargain was untrue but was consistent with statements of the witness and his attorney that they hoped they could plea bargain. 3. Constitutional Law 45 — failure of counsel to perfect appeal — no denial of effective assistance of counsel Where defendant alleges that he was denied effective assistance of counsel, trial counsel's failure to perfect defendant's appeal is not a basis for granting a new trial. 4. Constitutional Law 48 — alleged failure of counsel to develop alibi defense — no denial of effective assistance of counsel There was no merit to defendant's contention that he was denied effective assistance of counsel because counsel failed to develop an alibi defense, since counsel did call two alibi witnesses; failed to make pretrial preparation; failed to object to hearsay testimony, since the testimony in question was admissible; failed to request arrest of judgment on the conspiracy conviction, since the conspiracy conviction was not merged in the murder conviction; failed to conduct an adequate examination of witnesses, since the appellate court will not second-guess trial counsel's strategy; and failed to examine adequately the victim's children.<page_number>Page 55</page_number> 5. Criminal Law 93 — new evidence on rebuttal — no error Defendant was not prejudiced where the trial court allowed the State to present new evidence on rebuttal, since defendant was not denied an opportunity to challenge or rebut the new evidence. 6. Conspiracy 6 — testimony of co-conspirator — sufficiency of evidence Evidence was sufficient to be submitted to the jury in a prosecution for first degree murder and conspiracy to commit murder, though the evidence consisted mainly of the testimony of a co-conspirator, since testimony of a co-conspirator is competent to establish a conspiracy and a co-conspirator's unsupported testimony is sufficient to sustain a verdict. 7. Homicide 20.1 — photograph of victim — admissibility In a prosecution of defendant for first degree murder and conspiracy to commit murder, the trial court did not err in admitting into evidence a photograph of the victim which was properly authenticated by a pathologist whose testimony it illustrated, a key to the victim's home, and gloves purportedly given to a co-conspirator by the victim's husband. 8. Constitutional Law 28 — codefendant's conspiracy and murder convictions merged — defendant's convictions not merged — no denial of equal protection Defendant was not denied equal protection when a co-defendant's motion for merger of the conspiracy conviction with the first degree murder conviction was granted but defendant's convictions were not merged, since the codefendant was not present at the actual murder and his liability was predicated solely on his participation in the conspiracy, while defendant, on the other hand, not only conspired to murder the victim but also actually participated in killing her.

Rules of Civil Procedure 52 — findings of fact required upon request — specificity When requested, findings of fact and conclusions of law must be made even on rulings resting within the trial court's discretion, and when findings are required, they must be made with sufficient specificity to allow meaningful appellate review.

Constitutional Law 31 — sanity at time of offense — significant factor at trial — defendant entitled to assistance of psychiatrist When a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the State is required to provide access to a psychiatrist's assistance on this issue. Defendant made such a showing, though there was some evidence to the contrary, where he offered evidence that physicians at a hospital, 10 weeks after defendant was placed in custody, determined that he was then in need of psychiatric care, treatment and examination; he appeared at that time to be comatose; defendant had been unable to speak cogently with his counsel; he was incapable of responding to questions posed to him in open court; on admission at Dorothea Dix initial professional impressions were that he suffered from "an acute psychosis, probably schizophrenic in type"; defendant was treated therapeutically with psychotropic drugs which were prescribed for him upon his discharge; one of the doctors at Dix recommended that defendant be followed either at the mental health center or by the jail physician after his discharge; defendant's version of the crime as recited in the hospital summary was totally different from actual events; and defendant had a family history of depression and mental illness.<page_number>Page 250</page_number>

1. Criminal Law 88.1 — leading questions — cross-examination in form only The purpose of the qualification "ordinarily" used in N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 611(c) is to furnish a basis for denying the use of leading questions when the cross-examination is cross-examination in form only and not in fact. Further, the authority to sustain objections to leading questions directed to friendly witnesses in such situations is inherent in the discretion granted the trial court in Rule 611(a) to "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to . . . make the interrogation and presentation effective for the ascertainment of the truth." 2. Criminal Law 88.1 — limiting leading questions on cross-examination — failure to make findings and conclusions While the better practice would have been for the trial court to make findings and conclusions and declare formally that the witness was friendly to the party cross-examining her or adverse to the party calling her as a witness before limiting the use of leading questions on cross-examination of the witness, it was not reversible error for the court to limit leading questions on cross-examination without conducting a voir dire hearing or making any formal declaration when the record on appeal manifestly shows that the witness was only ostensibly the witness of the party calling her and was entirely friendly to the party cross-examining her. 3. Criminal Law 88.1 — limiting leading questions on cross-examination — friendly witness Defendant's right to cross-examine the State's witnesses was not denied when the trial court sustained the State's objections to leading<page_number>Page 331</page_number> questions during defendant's cross-examination of his wife, a witness called by the State where the witness sought whenever possible to make her testimony helpful to defendant and adverse to the State's case against him, and defendant was thus engaged in cross-examination in form only and not in fact. Further, any possible error in this regard was rendered harmless because defendant had the opportunity to establish any material fact he sought to elicit by simply rephrasing his questions to the witness.

1. Rape and Allied Offenses 3 — first degree rape — short form indictment — — age of victim A rape indictment alleging that the victim was "a female child eight (8) years old" sufficiently alleged that she was "a child under twelve" as required by N.C.G.S. <cross_reference>15-144.1</cross_reference>(b) (Cum. Supp. 1981) as it existed on 6 June 1983, the date of the alleged rape, and the additional allegation in the language of the 1 October 1983 amendment to the statute that the child was "thus of the age of under thirteen (13) years" was surplusage. 2. Rape and Allied Offenses 4.2 — rape by another — admissibility to explain victim's physical condition In a prosecution for first degree rape and first degree sexual offense, the trial court committed prejudicial error in refusing to allow defendant to question the child victim about instances of rape committed by defendant's adult son against the victim on the same day as the alleged rape by defendant in order to show that physical findings described by the physician who examined the victim were the result of those acts by defendant's son. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 412(b)(2).

Insurance 29.1 — Life insurance — ownership transferred to Keogh trustee — subsequent change of beneficiary not valid The trial court properly granted summary judgment for Patricia Dortch where John Dortch purchased a life insurance policy in 1972 and designated Patricia Dortch, then his wife, as beneficiary; Mr. Dortch assigned the policy in 1975 to a Keogh retirement plan and transferred ownership of the policy to the Central Bank of the South, the trustee of the plan; John and Patricia Dortch executed a separation agreement in 1979; Mr. Dortch remarried in 1980 and completed a change of beneficiary form for the Keogh plan designating his new wife and two daughters as beneficiaries; the plan administrator submitted the form to the bank; and the bank took no action to change the beneficiary before Mr. Dortch's death in 1984. The express language of the policy created a distinction between the policy owner and the person whose life was to be insured, the power to change beneficiaries falls squarely into the category of rights and privileges which the owner has the authority to exercise, Mr. Dortch unequivocally conveyed ownership to the bank, only the bank could effectively change beneficiaries after the transfer, and the bank could not do so after Mr. Dortch died and Patricia Dortch acquired vested rights to policy benefits.<page_number>Page 379</page_number>

1. Criminal Law 138.24 — aggravating factor — age of victim — not required that victim be targeted because of age The trial court did not err when sentencing defendant for first degree burglary, felony breaking or entering and felony larceny by finding that the crimes were aggravated because the victim was very old where the victim was seventy-nine years old. A defendant may take advantage of the age of his victim by targeting the victim because of the victim's age, or in the actual commission of a crime against the person of the victim or in the victim's presence, knowing that the victim by reason of age was unlikely to effectively intervene or defend himself. N.C.G.S. 15A-1340.4(a)(1)(j) (1983). 2. Criminal Law 138.24 — aggravating factor — physically infirm victim — no error The trial court did not err when sentencing defendant for burglary, felony breaking or entering, and felony larceny by finding as an aggravating factor that the victim was physically infirm where evidence stipulated to by defense counsel was that the victim had been under the care of a physician for both arthritis and angina. It is not necessary that the victim be targeted because of her infirmity; only that her condition be taken advantage of by the defendant, and the crimes here were committed in the victim's presence where her weakened condition was or should have been apparent. 3. Criminal Law 161, 138.11 — resentencing — greater sentence — no exception or assignment of error Whether a resentencing was improper in that it resulted in a longer sentence than that imposed during the first sentencing hearing was not properly before the Court where there was no assignment of error or exception in the record. N.C. Rules of Appellate Procedure, Rule 10(a).

Divorce and Alimony 30 — equitable distribution — closely-held corporation — finding as to value — not sufficient The trial court's finding in an equitable distribution action of the value of a closely-held corporation was not sufficient where the finding was merely an enumeration of the factors considered by the court in determining the value of defendant's interest in the corporation without any indication of the value the court may have attributed to each of the enumerated factors. N.C.G.S. <cross_reference>50-20</cross_reference>, N.C.G.S. <cross_reference>50-21</cross_reference>.

Rules of Civil Procedure 50.4 — motion for judgment n.o.v. — failure to preserve right Plaintiff failed to preserve her right to move for judgment notwithstanding the verdict where she failed to move for a directed verdict at the close of all the evidence.

Attorneys at Law 3.1 — attorney's agreement to pay on behalf of client — client's refusal to consent — attorney not responsible for payment Where plaintiff sold a mobile home to defendant's client, the client suffered an injury, could not work, and became delinquent in his payments on the mobile home, plaintiff agreed to make payments on the mobile home in return for reimbursement from defendant out of any settlement or recovery on the client's personal injury claim, but the client refused to authorize defendant to pay any creditors, plaintiffs action against defendant to recover sums paid on the mobile home should have been dismissed, since defendant's letter indicating that he would pay plaintiff for his expenditures did not constitute a guaranty by defendant of his client's debt, nor did defendant make a personal promise to pay which he breached rather, defendant acted as agent for his client in establishing a contract between the client and the plaintiff which the client breached when he subsequently revoked authorization for defendant to reimburse plaintiff out of the settlement proceeds.

1. Criminal Law 138.21 — assault with deadly weapon with intent to kill inflicting serious injury — especially heinous, atrocious, or cruel offense — sufficiency of evidence In a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury, evidence was sufficient to support the trial court's finding that the offense was heinous, atrocious, or cruel, where it tended to show that defendant approached the victim's back door with a plant in her hand; when the victim opened the door and took the plant, defendant shot her in the chest; the victim suffered a wound to her heart, and this injury was sufficient to support a conviction for the crime charged; the second, third, and fourth shots were not necessary to the conviction and resulted in a severed jugular vein and permanent nerve injury to the victim's arm; there was ample evidence of physical pain and psychological suffering sufficient to support the judge's finding that the offense was heinous, atrocious, or cruel in that the victim pled with defendant to stop firing; after all shots were fired, the victim was on the ground, drifting in and out of consciousness; and the victim felt pain and trauma, yet was unable to get help because she could not move. N.C.G.S. 15A-1340.4(a)(1)(f).<page_number>Page 481</page_number> 2. Criminal Law 138.24 — severity of sentence — physical infirmity of victim as aggravating factor — sufficiency of evidence In a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury, the trial court did not err in finding as an aggravating factor that the victim was physically infirm where the evidence tended to show that the victim was wearing a leg cast and, as a result, her mobility was greatly impaired; after being shot, the victim went down; once down, she had difficulty getting up; two hours later she finally managed to get back to her bedroom to call for assistance; and this evidence left little doubt that the victim's physical infirmity impeded her ability to recover from the effects of the attack and to call for assistance. N.C.G.S. 15A-1340.4(a)(1)(j). 3. Criminal Law 138.29 — severity of sentence — aggravating factor — insufficiency of evidence In a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury, the trial court erred in finding as a nonstatutory aggravating factor that defendant posed a dangerous threat to others, since there was no evidence that defendant posed any greater threat or danger to others than any member of the public convicted of the crime charged; furthermore, there was no merit to the State's argument that defendant posed a danger to others because she harbored deep resentment against her former lover who testified against her.

1. Municipal Corporation 30.11 — zoning ordinance — accessory building — use as residence by owner's son — ordinance not violated A zoning ordinance of respondent city did not prevent petitioner from allowing her son and his family to live in a detached building on her property where the ordinance provided that no accessory building could "be inhabited or used by other than the owners . . . or their employees," and "owners" must be construed as including the holder of title to the property and members of the titleholder's family. 2. Municipal Corporation 30.11 — zoning ordinance — accessory building used as residence — no accessory use — ordinance not violated A provision of respondent's zoning ordinance that an "accessory use" shall not include residential occupancy by others than servants and their families did not apply to bar petitioner's son and his family from living<page_number>Page 494</page_number> in an accessory building on petitioner's property, since the ordinance defined "accessory use" as "[a] use incidental to and customarily associated with the use-by-right and located on the same lot with the use-by-right," but use of the accessory building in this case was not an accessory use, but was instead the use-by-right itself, i.e., single-family residential use. 3. Municipal Corporation 30.11 — zoning ordinance — one main building — one use for lot — ordinance not violated There was no merit to respondent's contention that petitioner was in violation of its zoning ordinance which provided that "in no case shall there be more than one main building . . . on the lot nor more than one main use . . . per building and lot," since in this case there was only one main building, in which petitioner herself resided, and one main use, which was residential, and use of an accessory building by petitioner's family for residential purposes did not violate the ordinance.

1. Rape and Allied Offenses 3, 5 — forcible rape charged — insufficiency of evidence — intercourse with female under 13 shown but not charged Where defendant was charged with forcible first degree rape pursuant to N.C.G.S. <cross_reference>14-27.2</cross_reference>(a)(2), but no evidence was presented to show that the alleged rape entailed the use of a weapon, the infliction of serious injury, or aiding and abetting, and the trial judge did not instruct the jury on forcible rape, the failure of the trial court to submit the case to the jury pursuant to the crime charged in the indictment amounted to a dismissal of that charge and all lesser-included offenses. Furthermore, though there was evidence that defendant committed vaginal intercourse with a female under thirteen years of age and therefore could have been convicted of first degree rape pursuant to N.C.G.S. <cross_reference>14-27.2</cross_reference>(a)(1), he was not so charged, and he could be convicted, if at all, only of the particular offense charged in the warrant or bill of indictment. 2. Rape and Allied Offenses 6 — forcible rape charged — instruction on intercourse with female under 13 improper Where defendant was charged with forcible first degree rape but the trial court instructed on vaginal intercourse with a female under thirteen years of age, such instructions were error because they allowed the jury to convict on grounds other than those charged in the indictment; moreover, the instructions were a basic violation of due process because defendant was never charged with the only rape offense which the jury was instructed to consider. 3. Criminal Law 34.8 — father's taking of 12-year-old daughter to x-rated movie — evidence admissible to show plan In a prosecution of defendant for rape and incest, the trial court did not err in admitting evidence that defendant had taken his daughter to an x-rated movie and had told her to look at scenes depicting graphic sexual acts, since the daughter's presence at the film at defendant's insistence and his comments to her showed his preparation and plan to engage in sexual intercourse with her and to assist in that preparation and plan by making her aware of such sexual conduct and arousing her. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 404(b).

Criminal Law 48.1 — assertion of constitutional rights — erroneously admitted The Court of Appeals erred by finding prejudicial error and awarding a new trial in a homicide prosecution where the trial court admitted testimony that defendant had given a statement which ended with the assertion of his constitutional rights. The evidence presented by the State was ample to show defendant's motive, opportunity, and means to kill the victim, and points overwhelmingly to his culpability.