Volume 320 — North Carolina Reports

Criminal Law 53; Rape and Allied Offenses 4 — post traumatic stress disorder — witness improperly qualified as expert The trial court erred in a prosecution for first degree sexual offense, indecent liberties, and attempted rape by admitting expert testimony that the alleged victim was suffering from post traumatic stress disorder where the questions posed and the answers given in qualifying the witness as an expert in the field of clinical social work failed to establish that the witness had any particularized training or experience relating to post traumatic stress disorder; the witness may have received his graduate degrees as much as ten years prior to medical recognition of this disorder and, given the relative newness of recognition of this disorder, the court could not assume that the witness received training in it during his graduate studies; and the prosecutor failed to inquire as to whether the witness had received any postgraduate education on the disorder or had actual experience in identifying and counselling regarding it. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 702.<page_number>Page 148</page_number>

1. Utilities Commission 55 — findings mislabeled — sufficient Findings by the Utilities Commission satisfied the requirements of N.C.G.S. <cross_reference>62-79</cross_reference>, even though the findings and conclusions were mislabeled, where the Supreme Court was able to separate facts from conclusions. 2. Utilities Commission 57 — conclusion that decision to build and complete Catawba Unit 1 reasonable — supported by testimony of Duke's chairman The Utilities Commission finding that Duke Power Company's decision to construct and complete Catawba Unit 1 was reasonable, prudent and made in good faith was supported by the testimony of Duke's chairman, even though that testimony was contradicted by other witnesses and even though the Commission did not indicate the weight given to the conflicting testimony. The Utilities Commission may agree with a single witness, no matter how many opposing witnesses come forward, if the evidence supports that witness's position; moreover, the Commission clearly stated why it found the opposing testimony less persuasive than the chairman's testimony. N.C.G.S. <cross_reference>62-94</cross_reference>(b)(5). 3. Utilities Commission 55 — review of Utilities Commission order — function of Supreme Court The statutory function of the Supreme Court is not to determine whether there was evidence to support a position the Commission did not adopt, but whether there was substantial evidence in view of the entire record to support the position the Commission did adopt. N.C.G.S. <cross_reference>62-94</cross_reference>(b) (1982). 4. Utilities Commission 35 — Catawba Unit 1 — not excess generating capacity The evidence in a general rate case supported the Utilities Commission's explicit rejection of appellants' arguments concerning calculation of Duke Power Company's reserve margin and the use of the Belews Creek Unit 1 as a cycling plant; moreover, the evidence as a whole supported the conclusion that Catawba Unit 1 did not represent excess generating capacity. 5. Utilities Commission 15; Electricity 2.5 — nuclear plant built in South Carolina by Duke Power Company — no North Carolina certificate of convenience and necessity required Duke Power Company was not required to obtain a North Carolina certificate of convenience and necessity prior to beginning construction of the Catawba Nuclear Station, which was built in South Carolina and which partially served North Carolina customers, because N.C.G.S. <cross_reference>62-110.1</cross_reference> did not contemplate advance certification by the North Carolina<page_number>Page 345</page_number> Utilities Commission of facilities built in other states. Facilities must still be "used and useful" in providing service to North Carolina customers before they can be included in a public utility's rate base, and the Utilities Commission is directed by N.C.G.S. <cross_reference>62-110.1</cross_reference>(c) to confer with officials from other states and the federal government for the purpose of assessing the need for future generating facilities. 6. Utilities Commission 32 — Catawba Nuclear Station — common plant included in rate base — only one unit in operation The Utilities Commission acted within its authority when it included in Duke Power Company's rate base the company's ownership interest in all of the Catawba Nuclear Station's common plant, including such things as switching stations, waste treatment facilities, shops, laboratories, roads and parking lots, even though Catawba Unit 2 is still under construction. There was sufficient evidence that all of the costs for common plant were necessary for the safe and reliable operation of Catawba Unit 1 and were indivisible. N.C.G.S. <cross_reference>62-133</cross_reference>(b)(1). 7. Utilities Commission 57 — Catawba Nuclear Station — buyback agreement with municipal power agencies — agreement reasonably entered into The Utilities Commission properly found that Duke Power Company's buyback agreements with municipal power agencies and cooperatives were reasonably entered into as a means of financing completion of the Catawba Nuclear Station where the evidence supported the Commission's finding that financing charges had been minimized as a result of the Catawba sales and that those savings will benefit retail rate payers. 8. Utilities Commission 32 — Duke Power Company — general rate hearing — inclusion of McGuire Nuclear Station in rate base There was competent, material and substantial evidence in a general rate case to support the Utilities Commission's inclusion of the entire McGuire Nuclear Station in Duke Power Company's rate base, despite reliability exchange provisions with municipal power agencies and cooperatives which gave them the right to receive power from the McGuire station at very low rates prior to the completion of the Catawba Unit 2. 9. Utilities Commission 57 — Catawba Nuclear Station — amendment to buyback contract with local power agency — no error In a general rate case involving Duke Power Company's Catawba Nuclear Station, the Utilities Commission acted within the scope of its authority when it permitted Duke Power to recover costs associated with amendments to its contract with the North Carolina Municipal Power Agency for the sale and buyback of a portion of the capacity of Catawba Unit 2. 10. Utilities Commission 38 — operating and maintenance costs — not levelized — no error In a general rate case involving Duke Power Company's sale of some of the capacity of its Catawba Nuclear Station to municipal power agencies and cooperatives and a plan for Duke Power to buy back some of that capacity, the Commission did not err by refusing to levelize the operating and maintenance component of the buyback costs, even though there was little if anything in the record to<page_number>Page 346</page_number> support the Commission's conclusion that operation and maintenance costs were more variable than capital costs, which were levelized. There was nothing to suggest that the Commission's conclusion was wrong and common sense indicates that it was reasonable. The use of AFUDC rates to compute carrying costs from the levelization plan was not erroneous, even though Catawba Unit 1 is now in commercial operation and is not under construction, because Duke Power was not granted an AFUDC as such. 11. Appeal and Error 46 — evenly divided Supreme Court — Utilities Commission affirmed on that issue without precedential value In a general rate case in which Justice Meyer did not participate and the Supreme Court was evenly divided on the issue of whether the Utilities Commission properly allowed Duke Power to recover costs associated with its abandoned Perkins and Cherokee Nuclear Stations, the decision of the Utilities Commission was affirmed without precedential value. 12. Electricity 2.5; Utilities Commission 41 — Duke Power — general rate case — rate of return The Utilities Commission properly exercised its discretion in a general rate case by setting a rate of return within the range of those recommended by witnesses for Duke Power and for the public staff, and did not err by finding that Duke Power's capital rate structure included a common equity component of 45.52 percent. N.C.G.S. <cross_reference>62-133</cross_reference>(c). 13. Electricity 3.1 — rate differential — method for narrowing The public staff did not meet its burden of showing that the Utilities Commission erred in its rationale for adopting Duke Power's proposed method of narrowing the disparity between the rates of return for the residential customer class and the general and industrial class. 14. Utilities Commission 39 — Duke Power Company — general rate case — interest synchronization The Utilities Commission acted within its discretion and in conformance with applicable judicial precedent when it decided not to put Duke Power Company's receipt of a tax credit at risk by adopting the Attorney General's proposal for interest synchronization. At the time the order in the case was issued, the IRS rulemaking permitting interest synchronization was merely a proposed rulemaking which might never have become final. 15. Utilities Commission 39 — Duke Power not required to seek private letter rulings from IRS — no error The Utilities Commission did not abuse its discretion by refusing to order Duke Power Company to seek private letter rulings from the IRS on accumulated deferred taxes and investment tax credits.

1. Homicide 21.5; Assault and Battery 14.2 — assault and murder — evidence sufficient The evidence in a prosecution for assault with a deadly weapon and first degree murder was sufficient to take the charges to the jury where both a murder and a felonious assault were clearly committed; the evidence clearly supports a finding that the defendant committed them; and the nature and number of decedent's wounds support a further finding that the murder was committed with premeditation and deliberation. 2. Criminal Law 103 — instruction on role of jury — no error The trial court did not err during a prosecution for first degree murder and assault by stating to prospective jurors that their only concern was to determine whether defendant was guilty of the crime charged or any lesser offense. The statements in context merely gave prospective jurors a correct explanation of the procedure to be followed at trial. 3. Criminal Law 162 — introduction of courtroom personnel — reference to people of Edgecombe County — no objection, no assignment of error — no plain error Defendant's assignments of error to references by the court and the prosecutor to the "people of Edgecombe County" and to the introduction of various courtroom personnel were overruled where defendant did not object to the references to the people of Edgecombe County, did not assign error to the introduction of various courtroom personnel, and failed to demonstrate plain error in either the references or the introductions.<page_number>Page 405</page_number> 4. Jury 7.11; Constitutional Law 63 — death qualification of jury — constitutional Death qualification of the jury does not violate the Sixth, Eighth and Fourteenth Amendments of the U.S. Constitution or Art. I, 19 and 24, of the North Carolina Constitution. 5. Constitutional Law 30; Criminal Law 87 — defendant required to furnish list of witnesses before jury selection — no error The trial court did not err or abuse its discretion in a prosecution for first degree murder and assault by requiring defendant to furnish a list of witnesses prior to the voir dire examination of prospective jurors so that the jurors could answer questions of the court and counsel concerning their knowledge of and relationship to any of the witnesses who might be called on to testify. The trial court noted that this procedure had in the past resulted in considerable savings of time and defendant was unable to demonstrate specific prejudice. N.C.G.S. <cross_reference>15A-905</cross_reference> (1983). 6. Criminal Law 88 — cross-examination — restricted to attorney making objection on direct examination — no abuse of discretion There was no abuse of discretion in a prosecution for assault and first degree murder in the trial court's ruling that the attorney cross-examining a witness must also make the objections on direct examination of that witness. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 611(a). 7. Searches and Seizures 44 — denial of motion to suppress identification testimony — oral order at trial — written order six months later There was no error in a prosecution for assault and first degree murder in the trial court's entry of a written order denying defendant's motion to suppress identification testimony six months after trial where the order was simply a revised written version of the verbal order entered in open court. 8. Homicide 20.1 — murder — photographs of body — admissible The trial court did not abuse its discretion in a prosecution for first degree murder by admitting photographs of decedent's body where the pictures illustrated testimony with respect to the crime scene in general, the location and position of the body when found, and the wounds suffered by deceased, there was no evidence that the body had been moved from the place where it had originally fallen, and the pictures were not unnecessarily gory or gruesome. 9. Criminal Law 60, 99.3 — opinion of fingerprint expert — court's comment — no prejudice There was no prejudice in a prosecution for assault and murder from the judge's statement "that he testified to twelve points of identification without objection" after defense counsel objected to a question posed to an SBI agent testifying about fingerprint analysis of the murder weapon. The remark was not an expression of opinion but a response to an objection on a matter already in evidence; furthermore, the agent had already testified that there were twelve points of similarity between defendant's fingerprint and the fingerprint found on the pistol, and the State presented extensive evidence that a gun<page_number>Page 406</page_number> owned by defendant was found at the murder scene and was identified by the wife as the weapon used against her. 10. Criminal Law 85 — defendant's character — excluded — no prejudice Any isolated error in a prosecution for murder and assault relating to the failure of the court to allow evidence as to defendant's general character, his character for truthfulness and peacefulness, and the character for truthfulness of certain defense witnesses was clearly harmless in light of the extensive testimony given with respect to these matters. N.C.G.S. <cross_reference>15A-1443</cross_reference>(a) (1983). 11. Criminal Law 69, 90.1 — telephone conversation used as alibi — cross-examination of own witness not allowed — other evidence to same effect introduced — no prejudice There was no prejudice in a prosecution for murder and assault from the court's refusal to allow defendant to ask certain questions of two employees of defendant's insurance company where defendant sought to establish that he placed a call to the insurance company to report that his pistol had been stolen at 1:19, and that he could not have gotten to his home from decedent's house in time to make that call. Defendant was allowed to introduce and pass among the jury a phone bill that established that a call was made from his house to the insurance company at 1:19 p.m. N.C.G.S. <cross_reference>15A-1443</cross_reference>(a) (1983). 12. Criminal Law 101.4, 128.2 — juror allegedly expressed opinion on evidence — mistrial denied — no abuse of discretion The trial court in a prosecution for assault and murder did not abuse its discretion by denying defendant's motion for a mistrial, which had been based on information that one of the jurors had expressed an opinion on defendant's guilt prior to the close of evidence, where the court discussed the matter with the affiant who alleged that the juror had expressed an opinion, as well as with the juror, and concluded that the juror had done nothing improper but partially allowed defendant's motion by seating the alternate juror for the sentencing phase in place of the juror in question. 13. Criminal Law 43, 21 — intimate photographs of defendant and girlfriend — motion in limine not ruled on before trial — no prejudice There was no prejudice in a prosecution for assault and murder from the court's failure to rule before trial on defendant's motion to suppress a photo album containing personal, intimate photographs of defendant and his girlfriend which could damage her reputation. Defendant did not renew the motion at trial, there was thus no indication that the girlfriend would have been called but for the court's refusal to grant defendant's motion in limine, and defendant's concern for his girlfriend's reputation was insufficient to show prejudice when balanced against the magnitude of the offense for which he was being tried. N.C.G.S. <cross_reference>15A-1443</cross_reference>(a) (1983). 14. Constitutional Law 31 — motion for appointment of psychiatrist during sentencing for murder — denied There was no error in the sentencing phase of a murder prosecution from the denial of defendant's motion for appointment of a psychiatrist where defense counsel candidly admitted that there was no indication that defendant had a mental defect.<page_number>Page 407</page_number> 15. Criminal Law 135.7 — murder — instructions in sentencing phase — jury question on unanimity — error The trial court committed plain error warranting a new sentencing hearing in a murder prosecution where the court initially instructed the jury that the court would be required to impose a sentence of death if the jury's unanimous recommendation was for death, or a sentence of life imprisonment if the unanimous recommendation was for life imprisonment; the jury asked if the life sentence was automatic if the jury's decision was not unanimous, or if the jury had to reach a unanimous decision regardless; and the court reiterated the need for the jurors to confer together without violating individual judgments and again informed the jury that its decision must be unanimous. Upon inquiry by the jury, the trial court must inform the jurors that their inability to reach a unanimous verdict should not be their concern but should simply be reported to the court.

1. Appeal and Error 6.9 — order granting jury trial — right of appeal The trial court's interlocutory order ruling that plaintiffs are entitled to a jury trial affects a substantial right of defendants and is immediately appealable. N.C.G.S. <cross_reference>1-277</cross_reference> and <cross_reference>7A-27</cross_reference>. 2. Jury 1 — shareholders' derivative action — right to jury trial Although a shareholders' derivative action may be an action in equity, it is a civil action for which Art. IV, 13 of the N.C. Constitution guarantees the right to a jury trial.

1. Constitutional Law 9; State 1 — lease agreements with State — authority of Council of State All lease agreements entered into by the Department of Administration on behalf of the State must be submitted to the Council of State for<page_number>Page 534</page_number> approval or disapproval; where the lowest proposal has not been presented to the Council of State, the Council of State's authority is not limited to approval or disapproval, and the Council of State may require a statement of justification and examine all proposals. However, nothing in the statutory framework authorizes the Council of State to require the Department of Administration to negotiate and enter any lease other than the lease proposed to it by the Department of Administration. N.C.G.S. <cross_reference>146-25</cross_reference>. 2. Constitutional Law 9; State 1 — lease of property for State — Council of State action without authority Where lease specifications issued by the Department of Administration for the Employment Security Commission contained a cutoff date of 17 May and required that the costs include utilities and janitorial services, or provide an acceptable method of determining the costs of those items, the trial court properly found that the lowest rental proposed within the meaning of N.C.G.S. <cross_reference>146-25.1</cross_reference>(c) was the LOBB proposal of $6.25 per square foot with services since the next lowest proposal was $4.84 per square foot (plus an average figure furnished by the State of $1.80 per square foot for services), and defendant Berry's revised proposal of $3.95 per square foot without services was submitted on 12 June. The Council of State was therefore limited to approving or disapproving the LOBB proposal and was without statutory authorization to direct the Department of Administration to negotiate with and enter into a lease with defendant Berry. 3. Attorney General 1 — duty of Attorney General to defend State The duty of the Attorney General to appear for and defend the State or its agencies in actions in which the State may be a party or interested is not in derogation of or inconsistent with the executive power vested by the Constitution in the Governor. Art. III, 1 of the North Carolina Constitution, N.C.G.S. <cross_reference>114-2</cross_reference> (1), N.C.G.S. <cross_reference>114-1.1</cross_reference>. 4. Attorney General 1; Constitutional Law 9 — power of Governor to employ special counsel — no certification by Attorney General When N.C.G.S. <cross_reference>147-17</cross_reference>(a) is construed as a whole, the last sentence gives the Governor the unrestricted right to "employ such special counsel as he may deem proper or necessary," so that the Governor may employ special counsel to represent the State without first being advised by the Attorney General that it is impracticable for the latter to represent the interest of the State.

1. Quasi Contracts and Restitution 1.2, 5 — operation of farm — recovery for value of services — mortgage payments, improvements In an action for restitution and fraud arising from the operation by plaintiffs of a farm owned by defendants, plaintiff Betsy Britt introduced evidence which, if believed, entitles her to restitution for any damages she might prove. The trial court erred in admitting evidence of the reasonable value of plaintiff's services where<page_number>Page 574</page_number> there was evidence of two contracts between the parties, so that plaintiff was either operating the farm as her own business or had made an express contract for her pay. However, plaintiff would be entitled to compensation for payments made by her on the indebtedness of the farm if the jury should find that it was not part of the contract between the parties that the payments should be made from the gross income of the farm, but would not be entitled to compensation for payments made after she was told to leave the farm. Moreover, plaintiff is entitled to recover for expenditures for improvements to the farm if the jury should find that the expenditures were made not as normal business expenses in running the farm but were made by plaintiff from her own funds or from funds she should have been allowed to keep from the operation of the farm. 2. Fraud 12 — operation of farm — evidence insufficient The Court of Appeals correctly ruled that there was insufficient evidence to support a claim for fraud arising from the operation by plaintiffs of a farm owned by defendant where the evidence did not show that a promise by defendant to put stock in a corporation in plaintiff Betsy Britt's name if she stayed on the farm was a misrepresentation of a material fact; plaintiff did not show a loss to herself by staying on the farm; and there was no evidence that plaintiff was damaged by not receiving stock because the evidence did not show the purpose for which the corporation was to be organized or that it was ever organized, and did not show the value of the stock.

Judges 5 — recusal — standard of proof — letter asking grand jury consideration of charges against defendants The appearance of a preconception by the trial judge concerning the validity of the charges against a defendant is sufficient to require that the trial judge be recused upon motion by defendants. Therefore, the trial judge should have been recused where the evidence showed that the judge had written a letter to the district attorney requesting that the grand jury be asked to consider eight criminal charges against one defendant and seven criminal charges against the second defendant based on testimony he had heard when presiding over the trial of a third person.

1. Criminal Law 87.2 — question not leading After a rape victim testified that "everybody ran," the prosecutor's question as to whether she meant that "all three of the people that assaulted you before ran" was not an impermissible leading question but was asked to determine whether the victim's use of "everybody" meant the three men, including defendant, who she had testified moments before had assaulted her. 2. Criminal Law 99.3 — judge's comment not expression of opinion The trial judge did not express an opinion on the significance of SBI laboratory reports introduced by defendant when he stated that he did not want each individual juror to take the time to read the reports where the judge permitted defense counsel to read the reports to the jury in their entirety and allowed counsel to pass copies of these exhibits to the jurors for them to review. 3. Criminal Law 89.3 — prior consistent statements — admission after defense rested Although a witness's testimony was more detailed than that of the prosecutrix, it tended to strengthen and add credibility to the testimony of the prosecutrix and was thus admissible for corroborative purposes. Furthermore, the trial court did not err in admitting the corroborative testimony after the defense had rested. 4. Criminal Law 87 — questioning of witness by juror The decision of State v. Kendall, <cross_reference>143 N.C. 659</cross_reference>, <cross_reference>57 S.E.2d 340</cross_reference> (1907), that the propriety of juror questioning of witnesses is within the sound discretion of the court, is still the law in this state. However, the better practice is for the juror to submit written questions to the trial judge who should have a bench conference with the attorneys, hear any objections they might have, rule on the objections out of the jury's presence, and then ask the questions of the witness. Furthermore, such questions should ordinarily be permitted only for clarification. 5. Criminal Law 87 — questioning of witness by juror — objection not required When juror questions are asked of witnesses, it is not necessary for counsel to object in order to preserve the issue for appeal. 6. Criminal Law 87 — questioning of witness by juror — clarification of medical procedures The trial court did not err in permitting a juror's direct questioning of a defense witness during the trial where the apparent purpose of the questioning was for clarification of medical procedures used in this case, and the trial judge stopped the questioning after the witness fully clarified her earlier answers regarding the procedures used.<page_number>Page 719</page_number> 7. Criminal Law 102.6 — jury argument — failure to call alibi witnesses — burden of proof not shifted The prosecutor's jury argument that defendant did not call as a witness any one of the fifteen persons who were present at the time of the alleged offense because they probably would not back up his story about what happened did not impermissibly shift the burden of proof to defendant.

1. Criminal Law 69 — opinion that telephone call was local — harmless error Assuming that the trial court erred in the admission of a witness's opinion that a telephone call received from defendant on the date of the crimes when defendant's alibi witness claimed he was in the District of Columbia was a local call made in Durham, such error was harmless in light of the testimony of other witnesses placing defendant in Durham on the date of the crimes. 2. Rape and Allied Offenses 5 — first degree rape — serious injury to prevent escape The trial court did not err in submitting first degree rape to the jury on the theory that defendant inflicted serious injury upon the victim where two rapes and the assault that inflicted serious injury occurred within a one-half hour period, and defendant inflicted the injury (stab wounds and cuts) in an attempt to prevent the victim's escape from his unlawful custody since the injury was one in a series of incidents forming one continuous transaction between the rapes and the infliction of injury. 3. Kidnapping 1.3 — first degree kidnapping — instruction on serious injury The trial court did not err in instructing the jury that multiple stabbing and cutting with scissors, leaving a tip of the scissors embedded in the victim's head, would constitute a serious injury for purposes of first degree kidnapping. 4. Criminal Law 138.7 — sentencing — refusal to enter plea not considered The trial court's statement that it had, inter alia, considered the arguments of counsel in imposing sentence, when considered with the fact that the defense and prosecuting attorneys both made reference in their jury arguments to defendant's refusal to enter a plea, did not show that the trial court improperly considered defendant's decision to plead not guilty and go to trial in determining that his sentences for two rapes and kidnapping would be consecutive and in deciding the severity of the sentence for kidnapping. 5. Criminal Law 26.5; Kidnapping 2 — first degree kidnapping — rape — punishment for both — double jeopardy Double jeopardy principles preclude defendant's conviction for both first degree kidnapping and two first degree rapes where, pursuant to the court's instructions, the jury may have used one of the rapes to elevate the kidnapping from second to first degree. Upon remand for resentencing, the trial court may arrest judgment on the first degree kidnapping conviction and resentence defendant for second degree kidnapping or it may arrest judgment on one of the rape convictions.