Volume 321 — North Carolina Reports

1. Constitutional Law 63 — death qualified jury — constitutional The trial court did not err in a prosecution for murder, kidnapping, and discharging a firearm into an occupied motor vehicle by death qualifying the jury. 2. Criminal Law 63.1 — mental capacity of defendant — lay opinion admissible The trial court did not err in a prosecution for murder, kidnapping, and discharging a firearm into an occupied vehicle by allowing the State to ask defendant's estranged wife whether defendant knew the difference between right and wrong on the date of the killing. Lay opinion concerning the mental capacity of a defendant in a criminal case is admissible; however, assuming error, there was no prejudice because defense counsel asked on cross-examination whether the witness had told defendant's sisters that defendant had run around his yard naked and urinated on trees like a dog, whether defendant had been in a mental hospital, whether he awakened his family at night to go "bird<page_number>Page 32</page_number> blinding," whether he drove his truck down the road at excessive speeds with the doors open and his family inside, and whether he had injured his head during a motorcycle accident. Defense counsel also asked another witness whether defendant was in his right state of mind at some point prior to the killing and whether he had a reputation in the community for being crazy. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 701. 3. Criminal Law 64 — lay opinion that defendant intoxicated — no error The trial court did not err in a prosecution for murder, kidnapping and discharging a firearm into an occupied vehicle by allowing the State to ask defendant's companion whether defendant was intoxicated on the night of the murder where the companion had had an opportunity to observe defendant. 4. Criminal Law 65 — testimony that companion believed defendant's threat — admissible In a prosecution for murder, kidnapping, and discharging a firearm into an occupied vehicle, testimony by defendant's companion on the night of the murder that he believed defendant's statement that defendant would get him next if he told anybody because the companion felt that if defendant "knocked off" a lady, he would knock off a man was not prejudicial in the context of the witness's prior testimony detailing defendant's offenses. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 602, N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 701, N.C.G.S. <cross_reference>15A-1443</cross_reference> (a). 5. Criminal Law 63 — defendant's sanity — opinion of companion The trial court did not err in a prosecution for murder, kidnapping and discharging a firearm into an occupied vehicle by allowing the prosecutor to ask defendant's companion on the night of the shooting whether defendant was in his right mind and knew the difference between right and wrong or in allowing the witness's answers that defendant had been the same since he had known him and that defendant would have shot him if he had been out of his mind. The witness clearly had an opportunity to form an opinion as to defendant's mental capacity. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 701. 6. Criminal Law 89.10 — impeachment of witness — prior assaults The trial court in a prosecution for kidnapping, murder, and discharging a firearm into an occupied vehicle did not err by refusing to allow defendant to cross-examine his companion on the night of the murder about certain assaults the companion had allegedly committed. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 608 (b). 7. Kidnapping 1.2 — unlawful confinement — evidence sufficient The trial court did not err by not dismissing a kidnapping charge at the close of all the evidence where the evidence showed that defendant shot at the victim's car several times, got into the car and slapped her twice, and the car then pulled down a dirt road. Viewed in the light most favorable to the State, there was evidence which permitted a reasonable inference that defendant unlawfully confined the victim in the car. N.C.G.S. <cross_reference>14-39</cross_reference> (1986). 8. Criminal Law 63 — failure to instruct on insanity — no error The trial court did not err in a prosecution for murder, kidnapping, and discharging a weapon into an occupied vehicle by not charging the<page_number>Page 33</page_number> jury on the defense of insanity where the evidence showed that defendant's behavior was often antisocial and unacceptable, but did not support defendant's contention that he was incapable of knowing the nature and quality of his actions or of distinguishing right from wrong in relation to those actions. 9. Homicide 28.6 — murder — defense of intoxication — refusal to instruct — no error The trial court did not err in a first degree murder prosecution by refusing to instruct on voluntary intoxication and to submit the possible verdict of second degree murder on the basis that voluntary intoxication negated the specific intent necessary for first degree murder where the evidence showed only that defendant had had two drinks earlier in the evening and was insufficient to show that he was incapable of forming the intent necessary for first degree murder.

Insurance 130 — fire insurance — failure to give timely proof of loss — good cause — prejudice — burden of proof The insured under a fire insurance policy must bear the burden of proof as to "good cause" for the failure to give timely proof of loss that fully complied with policy provisions, and the insurer then must bear the burden of proof as to prejudice.

1. Burglary and Unlawful Breakings 5 — sufficient evidence of breaking The State's evidence supported submission of the breaking element to the jury in a prosecution for first degree burglary where it tended to show that police found a window screen bearing defendant's fingerprints on the ground outside an open window of the victim's apartment; they also found defendant's fingerprints on the windowsill inside the apartment; the window curtain was partially pushed back; and two flower pots on the windowsill had been upset. 2. Burglary and Unlawful Breakings 5 — sufficient evidence of nonconsensual entry The State's evidence was sufficient to permit the jury in a first degree burglary case to find that defendant's entry into the victim's apartment was nonconsensual and thus unlawful where it tended to show that the victim had been awakened in her bed by someone climbing on top of her; the assailant choked her, she resisted, and he then raped her; and the assailant entered the victim's apartment through a window. 3. Criminal Law 73.4 — excited utterance exception to hearsay rule Statements made by a burglary and rape victim when an officer arrived at her apartment after her assailant had fled and asked her if she could tell him what happened were admissible under the excited utterance exception to the hearsay rule provided by N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 803 (2) (1986), where the eighty-nine-year-old victim had been raped approximately ten minutes before making the statements; she was crying and extremely upset and spoke while under the stress of excitement; and the statements related to a startling event.<page_number>Page 73</page_number>

1. Rape and Allied Offenses 5 — first degree rape — intercourse with child under thirteen The evidence was sufficient to support defendant's conviction of first degree rape under N.C.G.S. <cross_reference>14-27.2</cross_reference> (a)(1) where the victim her brother both testified that defendant had intercourse with the victim, and the evidence showed that the victim was ten years old and defendant was twenty-nine years old at the time. 2. Rape and Allied Offenses 19 — indecent liberties with child — sufficient evidence The evidence was sufficient to support defendant's conviction of taking indecent liberties with a minor where it tended to show that the twenty-nine year-old defendant engaged in sexual intercourse with the ten-year-old daughter of his girlfriend. N.C.G.S. <cross_reference>14-202.1</cross_reference>. 3. Witnesses 1.2 — competency of children to testify The trial court did not err in ruling that the ten-year-old victim and her nine-year-old brother were qualified to testify in a rape and indecent liberties case where the voir dire testimony of the children supported the court's findings and conclusion that both children were capable of expressing themselves concerning the matters about which they were to testify and that the children understood the importance of telling the truth. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 601 (b).<page_number>Page 103</page_number> 4. Criminal law 26.5 — convictions of rape and indecent liberties — no double jeopardy Defendant was not placed in double jeopardy by being convicted and sentenced for both first degree rape and taking indecent liberties with a minor based on the same incident since each offense requires proof of a fact not required by the other offense.

1. Municipal Corporations 4.4; Counties 5 — city-owned sewage treatment plant located in county — county zoning laws The Supreme Court expressed no opinion on the correctness of the Court of Appeals' conclusion that a city-owned public enterprise located outside corporate limits is not subject to the County's zoning laws. 2. Municipal Corporations 4.4; Counties 5 — municipal sewage treatment plant — located in county — county's authority to impose limitations In an action to determine whether a city-owned sewage treatment plant located outside the city but within the county which is upgraded pursuant to the County's special use permit may be used by the City to provide sewer service to its citizens in newly-annexed areas without complying with a condition attached to the special use permit requiring the County's prior approval to provide service to county citizens, the County could not use a condition in the permit to impose limitations outside the scope of its statutory authority, and the City could use the plant to meet its statutory mandate to provide sewer service to residents in its newly-annexed areas without seeking the County's approval. N.C.G.S. <cross_reference>160A-47</cross_reference>, N.C.G.S. <cross_reference>153A-347</cross_reference>.

1. Damages 16.1; Rules of Civil Procedure 59 — injury to breech baby — verdict set aside as excessive — no abuse of discretion In an action against a hospital to recover damages resulting from a brain injury suffered by the minor plaintiff during a footling breech birth, the "cold record" did not affirmatively demonstrate a manifest<page_number>Page 261</page_number> abuse of discretion by the trial judge in setting aside the verdict of $4,850,000 for the minor plaintiff and ordering a new trial on the issue of the minor plaintiffs damages. 2. Appeal and Error 64 — appellate court evenly divided — affirmance of Court of Appeals' decision — no precedential value Where one member of the Supreme Court took no part in the consideration or decision of this case, and the remaining members of the Court are equally divided on an issue, the decision of the Court of Appeals on such issue is thus left undisturbed and stands without precedential value.

Husband and Wife 10 — separation agreement — signing in presence of notary — acknowledgment — subsequent affixing of certificate The acts of the parties in signing a separation agreement in the presence of a notary public satisfied the statutory requirements of an acknowledgment, and the notary could affix a certificate of acknowledgment to the separation agreement two years later so that the document "speaks the truth" where no rights of creditors or third parties are involved. N.C.G.S. <cross_reference>52-10.1</cross_reference>.

1. Homicide 24.1 — instructions — inferences of malice and unlawfulness — burden of proving insanity — no unconstitutional mandatory presumption of unlawfulness The trial court's instructions on the inferences of malice and unlawfulness arising from proof beyond a reasonable doubt of the intentional use of a deadly weapon proximately causing death and on<page_number>Page 416</page_number> defendant's burden to prove insanity to the satisfaction of the jury did not together create a constitutionally impermissible mandatory rebuttable presumption on the element of unlawfulness, since the defense of insanity is unrelated to the existence or nonexistence of the element of unlawfulness, and placing the burden of persuasion on the insanity issue upon the defendant in a homicide case in no way lessens the State's burden to prove unlawfulness beyond a reasonable doubt and does not shift the burden of persuasion on this element to the defendant. 2. Criminal Law 138.21 — second degree murder — especially heinous aggravating circumstance The evidence supported the trial court's finding of the especially heinous aggravating circumstance for a second degree murder where it showed that defendant shot the victim several times while the victim was fleeing for his life; as the victim fell to his knees, defendant shot him several more times; as the victim lay helpless and prone before him, defendant shot him a sixth time; as defendant continued to fire shot after shot into the victim's helpless body, he cruelly taunted him and indicated his intent to continue shooting until the victim was dead; five of the wounds, although painful, would not have been immediately fatal, and the victim could have remained conscious for some time even after receiving the sixth wound; and the victim was in fear for his life and was conscious that he was being repeatedly shot. 3. Criminal Law 138.29 — trial for first degree murder — conviction of second degree murder — premeditation and deliberation not proper aggravating factor Where a defendant is tried for first degree murder upon the theory of premeditation and deliberation and is found by the jury to be guilty of second degree murder, due process and fundamental fairness preclude the trial court from finding as an aggravating factor for second degree murder that defendant acted with premeditation and deliberation.

Telecommunications 3; Eminent Domain 3 — private condemnation — telephone line for single customer — public use or benefit The trial court erred in a private condemnation action by granting defendant's motion for summary judgment and denying plaintiffs motion for summary judgment on the grounds that plaintiffs desired use of the land in question is not for the use and benefit of the public where the condemnation was for the purpose of providing telephone service to a single customer. Under the public use test, it is the public's right to use rather than the actual use which is significant; here, every member of the public will have a common and identical right to use the telephone line. The public benefit test is satisfied in that provision of telephone service to a single customer to insure that an entire community is interconnected is a necessity required by the public and which cannot readily be provided without some government aid. N.C.G.S. <cross_reference>40A-3</cross_reference>.

1. Criminal Law 91.12 — Speedy Trial Act — time excluded for discovery — no violation Defendant's speedy trial rights were not violated by the passage of 224 days between indictment and trial where all but 14 days were excludable due to defendant's request for discovery. N.C.G.S. <cross_reference>15A-701</cross_reference>. 2. Criminal Law 26.3 — prior voluntary dismissal by State — finding that no dismissal taken — no error The trial court did not err in a prosecution for first degree sexual offense by finding that no prior dismissal had been taken where the evidence, although somewhat ambiguous, did not fail to support the trial court's finding that, although the Clerk of Court originally noted voluntary dismissal in her minutes, the District Attorney had told the Clerk he would file a written dismissal later in the week and had not done so. N.C.G.S. <cross_reference>15A-931</cross_reference>. 3. Criminal Law 89.8 — first degree sex offense — cross-examination of victim's mother — questions not allowed The trial court did not err in a prosecution for first degree sex offense by not permitting defendant to cross-examine the victim's mother about her motivation for testifying where nothing in the record supported the contention that the witness was even subtly coerced into testifying under the threat of removal of her children by the Department of Social Services; moreover, defendant neglected to preserve the proffered evidence for the record. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 103 (a)(2) (1986), N.C.G.S. <cross_reference>15A-1446</cross_reference> (a) (1983). 4. Criminal Law 89.1 — cross-examination — specific instance of conduct to show character for untruthfulness — not allowed There was no error in a prosecution for first degree sex offense from the trial court's refusal to allow defendant to cross-examine the victim's mother about whether she was deliberately not reporting income in order to receive more government assistance where defendant failed to have the witness answer for the record. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 608 (b).<page_number>Page 446</page_number> 5. Criminal Law 34.7 — first degree sex offense — subsequent offense — admissible The trial court did not err in a prosecution for first degree sexual offense by admitting evidence of a separate offense committed by defendant against the same victim on the day after he committed the offense for which he stood trial. Evidence of other crimes, wrongs or acts is admissible under N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 404 (b) to show motive, opportunity, intent, plan or identity; moreover, the witness sufficiently demonstrated personal knowledge of the incident in that she testified that she saw defendant lie on the couch with the child, saw him cover them both up with a sheet, saw the sheet moving up and down, immediately took the child away from defendant, and the boy complained shortly afterwards that defendant had hurt him.

1. Criminal Law 138.42 — second degree murder — victim's earlier stabbing of defendant — failure to find as mitigating circumstance The trial court in a second degree murder case did not err in failing to find as a nonstatutory mitigating circumstance that the victim stabbed defendant forty-eight hours prior to the shooting of the victim where the court found the statutory mitigating circumstance that the relationship between the victim and defendant was otherwise extenuating, and it is reasonable to assume that the trial court considered the stabbing incident as a fact tending to show the extenuating relationship. 2. Criminal Law 138.32 — second degree murder — mitigating circumstance of duress — finding not required Evidence in a second degree murder case that the victim had stabbed defendant forty-eight hours before defendant shot the victim did not require the trial court to find the statutory mitigating circumstance that defendant acted under duress, N.C.G.S. 15A-1340.4 (a)(2)b, where the trial court found the statutory mitigating circumstance that the relationship between the victim and defendant was otherwise extenuating; defendant presented no evidence that the victim displayed a weapon or initiated the confrontation at the time of the killing; and defendant testified that the victim was unaware of defendant's presence at the time he shot the victim. 3. Criminal Law 138.38 — second degree murder — mitigating circumstance of strong provocation — finding not required Evidence that the victim had stabbed defendant, that the victim had threatened defendant's life and refused to talk with him about the stabbing incident after defendant got out of the hospital, and that defendant believed the victim was armed at the time defendant shot him did not require the trial court to find the mitigating circumstance that defendant acted under strong provocation when he shot the victim where more than forty-eight hours had elapsed between the stabbing and the shooting; more than eight hours had elapsed between the time of the second confrontation after defendant got out of the hospital and the time of the shooting; and the evidence showed that defendant not only initiated the final confrontation but that the victim was unaware of defendant's presence when defendant opened fire on him. 4. Criminal Law 138.14 — second degree murder — aggravating circumstance outweighing mitigating circumstances — no abuse of discretion in conclusion The trial court did not abuse its discretion in concluding that the aggravating factor of prior crimes punishable by more than sixty days in jail outweighed the mitigating circumstances that defendant voluntarily surrendered to the jurisdiction of the court and that the relationship between the victim and defendant was otherwise extenuating and in imposing a sentence of life imprisonment on defendant for second degree murder.<page_number>Page 521</page_number>

1. Witnesses 1.2 — four-year-old sex offense victim — competent witness The trial court did not abuse its discretion in a prosecution for crime against nature, taking indecent liberties with a child, and first degree sexual offense by ruling that the victim was competent to testify where, during the voir dire, the victim correctly stated his age and date of birth and the name of the school he had attended for a short period, indicated his ability to distinguish truthful and untruthful statements and his knowledge that he could be put in jail if he lied during his testimony, and promised to tell the truth in his testimony during both direct and cross-examination. Furthermore, the trial court did not err by failing to make findings of fact and more detailed conclusions concerning the child's competency; State v. Fearing, <cross_reference>315 N.C. 167</cross_reference>, is not authority for the proposition that a defendant is entitled to a new trial if the court fails to make formal findings when exercising its discretion in determining competency to testify. 2. Criminal Law 34.4 — sexual offense and indecent liberties with a child — magazines and videotape — admissible The trial court did not err in a prosecution for crime against nature, taking indecent liberties with a child, and first degree sexual offense by admitting into evidence a videotape and magazines found in defendant's home where the tape and magazines were relevant to corroborate the victim's testimony that defendant had shown him such materials at the time defendant committed the crimes for which he was on trial. The exhibits and testimony were therefore relevant to a fact in issue other than the character of the accused. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 404 (b), N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 401.

1. Criminal Law 164 — review of sufficiency of evidence — necessity for motion to dismiss at close of all evidence Under Rule of App. Procedure 10 (b)(3), a defendant who fails to make a motion to dismiss at the close of all of the evidence may not attack on appeal the sufficiency of the evidence at the trial. To the extent that N.C.G.S. <cross_reference>15A-1446</cross_reference> (d)(5) is inconsistent with Rule 10 (b)(3), the statute must fail. 2. Witnesses 1.2 — competency of child witness — failure to hold voir dire and make findings — harmless error Where the testimony of the thirteen-year-old prosecutrix observed by the trial court fully supported a conclusion that the prosecutrix was not disqualified as a witness for failure to understand her duty to tell the truth as a witness, the trial court's failure to conduct a voir dire inquiry and make specific findings and conclusions concerning the competency of the prosecutrix to testify was, at worse, harmless error.<page_number>Page 551</page_number> 3. Rape and Allied Offenses 4.1 — continuing course of sexual acts — rape victim shield statute — failure to hold in camera hearing In a prosecution of defendant for first degree rape and first degree sexual offense committed against his daughter, the daughter's testimony that defendant often engaged in sexual intercourse with her was not prohibited by Rule of Evidence 412, and any error by the trial court in failing to conduct the in camera hearing required by Rule 412 before admitting such testimony was harmless error. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 412 (b)(1). 4. Rape and Allied Offenses 4.1 — other acts of intercourse — competency to show common plan or scheme In a prosecution of defendant for first degree rape and first degree sexual offense committed against his daughter, testimony by the daughter that defendant had engaged in a continuing course of acts of sexual intercourse with her was admissible under Rule of Evidence 404 to establish the relevant fact that defendant took sexual advantage of the availability and susceptibility of his young victim at times when she was left in his care. Furthermore, the trial court did not abuse its discretion in failing to exclude this testimony under Rule of Evidence 403 as being more prejudicial than probative.

1. Criminal Law 34.7 — other sex offense — admissible to show scheme or intent The trial court did not err in a prosecution of defendant for the first degree rape of his twelve-year-old stepdaughter by admitting testimony from defendant's wife concerning an incident with her eight-year-old female cousin where that incident had been the basis of a statement by the witness to a doctor that she thought defendant<page_number>Page 575</page_number> had had intercourse with her daughter and where there were similarities with the incident for which defendant was charged. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 404 (b), N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 403. 2. Criminal Law 34.3 and 128.1 — first degree rape — testimony of previous charge — mistrial denied — no abuse of discretion The trial court did not abuse its discretion in the prosecution of defendant for the first degree rape of his stepdaughter by denying his motion for a mistrial after defendant's wife testified that her husband had been brought to court before for rape. The trial court took prompt and sufficient corrective action by sustaining defendant's objection, allowing defendant's motion to strike, and instructing the jury not to consider the response; moreover, overwhelming evidence of defendant's guilt had already been admitted.

1. Criminal Law 73.2 — unavailable witness — statement admitted — no error The trial court did not err in a first degree murder prosecution by introducing the statement of an absent witness where the State's evidence showed that defendant had a copy of the statement well in advance of trial; defendant ascertained the witness's identity on or about the day trial began, five weeks before the statement's introduction; the trial court gave defendant an additional day to prepare to meet the statement and to frame a defense against its admission; defendant, after a lengthy and sensitive voir dire, did not request additional time to prepare to meet the statement; and defendant's counsel admitted that he was prepared to cross-examine the witness regarding the statement, indicating his familiarity with its substance. Defendant was provided with a fair opportunity to meet the witness's statement and therefore the notice given by the prosecutor was sufficient under N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 804 (b)(5); moreover, the record reveals that the trial court took into account and made provision for the lack of time defendant had to locate the witness. 2. Criminal Law 73.2 — statement of unavailable witness — sufficient guarantees of trustworthiness The statement of an unavailable witness contained sufficient guarantees of trustworthiness to be admitted in a murder prosecution under N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 804 (b)(5) where the statement resembled a declaration against penal interest, there was extensive corroborating evidence, the witness manifested his personal knowledge of underlying events, there was a discernible motivation to speak the truth, and the witness never recanted his testimony. Although the reason for the witness's unavailability detracts from the trustworthiness of the statement, on balance the other indications of trustworthiness were sufficient. 3. Constitutional Law 30 — failure of prosecutor to disclose impeachment material — no error The prosecutor in a first degree murder prosecution did not intentionally fail to inform defense counsel of material which could have been used to impeach the testimony of a State's witness, even though the State dismissed a charge of felony possession of marijuana immediately after the witness's testimony, where the lab report revealed only 13 grams of marijuana, an insufficient amount to constitute a felony. The witness's pleas of guilty to two other drug related charges and the State's decision to dismiss a charge it could not prove do not establish a plea bargain. N.C.G.S. <cross_reference>15A-1054</cross_reference> (c). 4. Constitutional Law 56 — murder — sentencing phase — incapacitated juror — inquiry into fitness of juror on guilt phase denied — no error The trial court in a murder prosecution did not deprive defendant of his Sixth Amendment right to an impartial jury by failing to allow an inquiry into the fitness of a juror who participated in the guilt phase<page_number>Page 617</page_number> of the case where a mistrial was declared during the penalty phase of the trial due to incapacity of a juror based on the juror's failure to return from an evening recess and a letter from the Wake County Alcoholism Treatment Center. Defendant did not bring forward the letter for review and there was not the slightest suggestion in the evidence before the court that the excused juror suffered from any mental or emotional condition that could have affected his deliberations during the guilt phase. 5. Conspiracy 5.1; Criminal Law 73.2 — murder — hearsay statements of co-conspirator — admissible The trial court did not err in a murder prosecution by admitting the testimony of two witnesses concerning their conversations with defendant's alleged co-conspirator concerning their plans to rob the victim and their willingness to shoot the victim if necessary. Defendant's own declarations served to establish a prima facie case of conspiracy and the court therefore did not err by admitting the hearsay statements of a co-conspirator against defendant. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 801 (d)(E). 6. Homicide 21.5 — first degree murder — evidence sufficient The trial court did not err in a first degree murder prosecution by denying defendant's motions to dismiss all charges on the grounds of insufficient evidence where the State demonstrated that defendant admitted to his cousin the day before the killing took place that he intended to rob and, if necessary, kill the victim; the day before the murder defendant discussed with an accomplice how to use and hide a shotgun; defendant was positively identified as wearing a green Army jacket under which he hid a shotgun on his way to the victim's store moments before the murder; all of the witnesses at the time of the murder described one of the killers as wearing an Army jacket and carrying a shotgun; the assailants took the victim's briefcase, which contained an undetermined amount of money and shot the attending clerk; defendant left Raleigh immediately after the murder for Fayetteville where he registered under an alias; defendant spent money freely and admitted that the police were searching for him in connection with the victim's murder; and defendant was in possession of money marked with handwriting identified as the victim's. The same facts support convictions for armed robbery, assault with a deadly weapon with intent to kill inflicting serious injury, and conspiracy.

1. Criminal Law 99.7 — warnings concerning perjury — no error In a second degree murder prosecution, the trial court and the district attorney did not improperly stifle the free presentation of testimony by warning a witness that she could be subject to perjury and contempt of court where the judge reminded the witness of the oath's significance and the consequences of perjury only after the witness had several times admitted that she had lied and the judge gave the warning in a judicious and nonthreatening manner. Nothing in the D.A.'s colloquy with the witness demonstrated reversible error and the record does not reveal that the other two witnesses were intimidated into changing their testimony. 2. Criminal Law 91.6 — Speedy Trial Act — period between dismissal of first indictment and second indictment — properly excluded The trial court did not abuse its discretion in a murder prosecution by denying defendant's motion to dismiss for speedy trial violations where 342 days between dismissal of the first indictment and reindictment were excluded. The dismissal of the first indictment was under N.C.G.S. <cross_reference>15A-931</cross_reference>, so that the speedy trial exclusion of N.C.G.S. <cross_reference>15A-701</cross_reference> (b)(5) is applicable, even though the notice of dismissal was with leave, because defendant had appeared and the "with leave" language was mere surplusage. The fact that the investigation continued rendered the dismissal no less final because prosecution could not resume without a new indictment and, although defendant's bail bond should have been discharged, there was no prejudice since defendant was not required to appear or render herself amenable to the orders and processes of the court during that period. N.C.G.S. <cross_reference>15A-932</cross_reference>. 3. Criminal Law 91.9 — Speedy Trial Act — findings and conclusions The trial court did not abuse its discretion in a murder prosecution by denying defendant's renewed motion to dismiss on speedy trial grounds without findings or conclusions where the court had orally entered the findings of fact and conclusions of law at the first hearing on defendant's motion to dismiss and defendant's renewed motion at trial merely renewed the original motion and added no new legal grounds. 4. Criminal Law 117 — instructions — inconsistent statements of witnesses — no prejudice Although the trial court in a murder prosecution agreed to give defendant's requested instruction that the jury could consider witnesses' pretrial conflicting statements in determining truthfulness, but actually instructed the jury to consider consistent statements in determining truthfulness, there was no prejudice because the court had properly instructed the jurors about the consideration of prior statements at several points during the trial when the statements were introduced, the evidence at trial involved both consistent and inconsistent prior<page_number>Page 634</page_number> statements of several different witnesses and much time was spent in attempts to discredit the statements, and the jury doubtless understood their duty as fact finders to consider consistencies and inconsistencies in deciding the veracity of a particular witness. N.C.G.S. <cross_reference>15A-1443</cross_reference>. 5. Criminal Law 86.4 — murder prosecution — prior killings — motion in limine denied — prejudice The trial court erred in a murder prosecution by denying defendant's motion in limine to exclude evidence that she had been involved in other killings where the trial court deferred ruling on the motion until defendant renewed her motion near the close of her evidence but before she had rested or testified, and did not testify after her motion was denied. The statements were only available at that point as impeachment evidence and were inadmissible for that purpose under N.C.G.S. <cross_reference>8C-1</cross_reference>. Rule 608 (b) because they showed specific instances of conduct relating to violence against other persons which would be relevant to defendant's veracity. That defendant was prejudiced was abundantly clear from the record that defendant intended to testify unless her motion in limine was denied and that defendant was justified in believing that if she took the stand, the district attorney intended to cross-examine her concerning the statements in question.

1. Weapons and Firearms 3 — discharging gun into occupied property — gun inside vehicle when fired Defendant discharged a gun "into" an occupied vehicle within the meaning of N.C.G.S. <cross_reference>14-34.1</cross_reference> where he was standing outside the vehicle when he fired shots from a pistol even though the pistol itself was inside the vehicle when the shots were fired. 2. Homicide 21.5 — first degree murder — sufficient evidence of premeditation and deliberation There was sufficient evidence of premeditation and deliberation to support defendant's conviction of first degree murder of a highway patrolman where the evidence tended to show: when the patrolman stopped the truck in which defendant was riding, the driver threw a .25 caliber pistol to defendant; before defendant got out of the truck to go over to the patrol car, he put the pistol in his jacket pocket; when defendant was standing outside the passenger window of the patrol car, he heard "armed and dangerous" and then "armed" over the patrolman's radio; and after the driver of the truck yelled for him to shoot the patrolman, defendant reached into his pocket, pulled out the pistol, and shot through the window of the patrol car into the patrolman's head. 3. Criminal Law 9.3; Robbery 4.6 — armed robbery — acting in concert theory The State's evidence was sufficient to support defendant's conviction for armed robbery of a highway patrolman's revolver under a theory of acting in concert where it tended to show that defendant and his companion escaped together from an Arkansas jail; they broke into an Arkansas home and stole a rifle and a truck; they were carrying a .25 caliber pistol when the patrolman stopped their truck; defendant shot the patrolman with the .25 caliber pistol, the companion shot the patrolman with his own revolver, and the companion took the patrolman's revolver when he and defendant fled the scene; and two days later defendant and his companion broke into another home and stole another gun. Evidence that defendant ran back to the truck after shooting the patrolman and before his companion took the patrolman's revolver does not establish that defendant and his companion were not acting in concert in the armed robbery. 4. Burglary and Unlawful Breakings 1.2 — second degree burglary — acting in concert — constructive breaking The State's evidence was sufficient for the jury on the issue of defendant's guilt of second degree burglary under a constructive breaking theory where it tended to show that defendant and a companion had escaped together from an Arkansas jail and were acting in concert to evade the authorities; the companion gained entrance to a house by breaking a stick which held a window down, raising the window, and<page_number>Page 664</page_number> tearing a hole in the plastic covering inside the window; while the companion broke into the house defendant hid in a tobacco barn; and defendant later went into the house with the companion where they stole food, blankets and a gun. 5. Criminal Law 33.4 — evidence to gain sympathy — admission as harmless error In a prosecution for first degree murder of a highway patrolman, assuming, arguendo, that the court erred in allowing the patrolman's parents and fiancee to raise their hands and identify themselves in the courtroom and in allowing the patrolman's mother to testify when she last saw her son alive, where her son was buried, and whether her son was engaged, the error was harmless in light of defendant's admission that he shot the patrolman under the circumstances related in his statement. N.C.G.S. <cross_reference>15A-1443</cross_reference> (a). 6. Criminal Law 34.7 — prior crimes — admissibility to show motive In a prosecution for the first degree murder of a highway patrolman, evidence that defendant and a companion assaulted a jailer with a pipe to escape from jail in Arkansas and that they broke into an Arkansas home and stole a rifle and a truck which they drove to North Carolina was admissible under N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 404 (b) to show intent and motive for killing the patrolman.

1. Homicide 12 — indictment — defendant's county of residence not alleged — no error A murder indictment which omitted the county of defendant's residence was not fatally defective because defendant's county of residence need not be proven at trial and N.C.G.S. <cross_reference>15-144</cross_reference> states that it is not necessary to allege matter not required to be proved at trial in indictments for murder and manslaughter. 2. Homicide 12 — murder — indictment — with force and arms omitted — not defective A murder indictment which omitted the averment "with force and arms" was not fatally defective because N.C.G.S. <cross_reference>15-144</cross_reference> does not prevail over the language of N.C.G.S. <cross_reference>15-155</cross_reference>. 3. Indictment and Warrant 7 — assault and robbery — indictments — insufficient evidence — no grounds for quashing indictments The trial court did not err by refusing to quash indictments for assault with a deadly weapon with intent to kill inflicting serious injury and robbery with a firearm on the basis of insufficient evidence to support the charges. Insufficiency of the State's evidence at trial is not a proper ground for quashing an indictment. 4. Criminal Law 43.2 — sketch of crime scene — not prepared by witness — admissible The trial court in a prosecution for first degree murder, assault, and robbery did not err by admitting for illustrative purposes a sketch of the crime area prepared by someone other than the testifying witness. As long as the witness is able to testify that an exhibit used for illustrative purposes is a fair and accurate representation of the scene it portrays, it is irrelevant that the witness did not prepare the exhibit; even assuming that the sketch was not properly authenticated and contained information beyond the witness's testimony, the State presented overwhelming evidence of defendant's guilt and defendant failed to show that there was a reasonable possibility that a different result would have been reached at trial had the error not been committed. 5. Criminal Law 43 — photograph of victims — admissible for illustrative purposes The trial court did not err in a prosecution for murder, robbery, and assault by admitting for illustrative purposes a photograph of the victims taken more than one year before the crimes were committed where the surviving victim testified that the photograph of himself and the deceased represented the way they looked a year before the crimes; the victim used the photograph to illustrate his testimony concerning his health prior to being shot, where he kept a tobacco tin like the one<page_number>Page 677</page_number> stolen from him, where the deceased kept money in his bib overalls, and where the deceased kept his wallet; and the witness testified that the deceased was dressed in bib overalls on the day of his murder which looked exactly like the ones in the photograph. 6. Constitutional Law 30; Criminal Law 43 — discovery — photographs of victim — not furnished — admissible The trial court did not err in a prosecution for murder, robbery, and assault by receiving into evidence photographs of one victim which had not been furnished to defendant upon his motion for discovery. The State advised defendant ten months before trial that photographs of the crime scene were available at the Sheriff's Department, the only photographs not available at the Sheriff's Department were photographs taken during the autopsy of the deceased victim, and the State informed defendant that the pathologist had those photographs and would be bringing them to court. The State made the photographs available to defendant and fulfilled its obligation under N.C.G.S. <cross_reference>15A-903</cross_reference> (d). 7. Criminal Law 75.10 — confession — voluntary The trial court did not err in a prosecution for murder, robbery, and assault by denying defendant's motion to suppress his inculpatory statement where defendant contended he was faced with a situation in which he could not have given a voluntary confession and the court found that defendant was advised of his constitutional rights prior to questioning; that defendant signed a waiver of his rights; that he was asked if he wanted anything or anyone in the interrogation room; that defendant never asked to have anyone present; that defendant was eighteen years old and had quit school in the ninth grade; and that defendant could read and that no promises or threats were made to him. N.C.G.S. <cross_reference>15A-977</cross_reference> (f). 8. Robbery 4.3 — armed robbery — evidence sufficient The evidence of robbery by the use of a dangerous weapon was sufficient to withstand defendant's motions to dismiss all charges and set aside the verdict where the evidence, when considered in the light most favorable to the State, tended to show that defendant shot Buster Powell and robbed him while he lay mortally wounded on the floor. 9. Assault and Battery 14.4 — assault — evidence sufficient The evidence of assault with a deadly weapon with intent to kill inflicting serious injury not resulting in death was sufficient to deny defendant's motions to dismiss all charges and set aside the verdict where defendant admitted that he carried a .22 caliber rifle into the building where the victims were working, that he fired the rifle at one victim, and that his accomplice was carrying a pistol in his pocket which he used to shoot the other victim; a medical doctor testified that victim Lowe suffered nine gunshot wounds and a firearms examiner testified that at least one bullet removed from Lowe was fired from the same semi-automatic rifle used to shoot the other victim; defendant admitted planning to shoot Powell because he did not want to be identified; other evidence of intent to kill included the viciousness of the assault and the deadly character of the weapon used; and there<page_number>Page 678</page_number> was evidence of serious injury in that the victim Lowe was hospitalized as a result of the injuries received during the assault. N.C.G.S. <cross_reference>14-32</cross_reference> (a). 10. Homicide 21.5 — murder — evidence sufficient The trial court did not err by denying defendant's motion to dismiss the charge of first degree murder where defendant readily admitted that he planned the robbery and murder of Buster Powell, that he borrowed a .22 caliber rifle which he carried with him to Powell's house on the day of the shooting, that he shot and killed Powell to ensure that he would not be identified, that he reached into Powell's pocket and stole his money after he shot Powell, and an eyewitness tended to corroborate the confession. N.C.G.S <cross_reference>14-17</cross_reference>.

1. Criminal Law 138.27 — murder — aggravating factor — position of trust or confidence — infant The trial court did not err in sentencing defendant on a plea of guilty to second degree murder by finding as an aggravating factor that defendant took advantage of a position of trust or confidence where the victim was only three months old. This aggravating factor<page_number>Page 690</page_number> does not require evidence of a conscious mental process on the part of an infant victim and may properly be grounded in the child's dependence on the defendant. N.C.G.S. 15A-1340.4 (a)(1)n (1983). 2. Criminal Law 138.32 — murder — mitigating factors — compulsion — not found The trial court did not err in a prosecution for the second degree murder of an infant by her mother by failing to find the statutory mitigating factor that defendant committed the offense under duress, coercion, threat or compulsion insufficient to constitute a defense but significantly reducing her culpability where defendant presented only evidence of internal psychological forces which led her to take the life of her child. Although defendant's psychological condition was caused by external factors, it is clear that this mitigating factor was intended to apply to situations in which some type of external pressure is directly exerted upon defendant in an attempt to force commission of the offense; moreover, defendant's state of mind was properly considered by the judge when he found in mitigation that defendant was suffering from a mental condition. N.C.G.S. 15A-1340.4 (a)(2)b (1983). 3. Criminal Law 138.35 — murder — mitigating factor — immaturity or limited mental capacity — not found The trial judge did not abuse his discretion when sentencing defendant for the second degree murder of her infant by failing to find the statutory mitigating factor that defendant's immaturity or limited mental capacity significantly reduced her culpability where defendant was seventeen years old at the time of the crime; had the emotional maturity of a twelve or thirteen year old; had diminished intellectual capacity; and had an IQ of 70. The State's summary of the evidence tended to show that defendant was aware of other options, such as leaving the baby with her cousin, but chose not to pursue them and began plotting murder; defendant had planned to put her baby in a trash can while her family slept on the night before the drowning; defendant briefly considered rescuing the baby during the drowning but rejected the notion and watched the child sink; and defendant had the presence of mind after the drowning to fabricate a story implicating someone else. N.C.G.S. 15A-1340.4 (a)(2)e (1983). 4. Criminal Law 138.34 — murder — mitigating factor — physical condition — not found — no error The trial court did not err in sentencing defendant for the second degree murder of her own child by failing to find in mitigation that defendant suffered from a physical condition insufficient to constitute a defense but significantly reducing her culpability for the offense where defendant presented evidence of poor health and physical deterioration due to physical abuse, seizures, and inadequate recovery from childbirth, but the trial judge could properly have inferred from the State's evidence that defendant was aware of the nature of her conduct. N.C.G.S. 15A-1340.4 (a)(2)d. 5. Criminal Law 138.42 — second degree murder — nonstatutory mitigating factor — psychological condition — not found The trial court did not err when sentencing defendant for the second degree murder of her infant by not finding as a non-statutory mitigating factor that defendant suffered from a psychological condition<page_number>Page 691</page_number> insufficient to constitute a defense but significantly reducing her culpability where the trial judge found defendant's mental condition to be a statutory mitigating factor under N.C.G.S. 15A-1340.4 (a)(2)d. The term mental condition as used in that statute includes not only mental diseases and illnesses but also psychological disorders which are not necessarily categorized as diseases or illnesses, and the trial judge clearly considered the evidence relating to defendant's psychological paralysis in determining that she suffered from a mental condition at the time of the offense.

1. Rape and Allied Offenses 5 — first degree sexual offense — sufficiency of evidence The State's evidence was sufficient to support defendant's conviction of a first degree sexual offense where the victim testified without contradiction that defendant held a knife against her throat and forced her to perform fellatio on him; the car described by the victim as belonging to her assailant was the car owned by defendant at the time of the offense; the victim's description of her assailant substantially matched that of defendant; and most of the victim's testimony was substantially corroborated by other witnesses. Evidence that the victim waited for some months before reporting defendant's identity to the authorities after she observed his automobile license number, that she was unable to recognize defendant during a later hitchhiking incident until after she was inside defendant's car, and that she gave conflicting statements of events occurring prior to the sexual assault goes only to the issues of credibility and weight to be given to the evidence and does not show that the State's evidence is inherently incredible. 2. Rape and Allied Offenses 6.1 — first degree sexual offense — refusal to instruct on crime against nature The trial court in a first degree sexual offense case did not err in refusing to instruct the jury on crime against nature as a lesser included offense since (1) crime against nature is not a lesser included offense of a sexual offense in the first or second degree, and (2) there was no evidence from which the jury could have found that the victim consented to the sexual act so as to support an instruction on crime against nature.

1. Criminal Law 128.2 — evidence of prior charge against defendant — mistrial not required The trial court in a felony murder case did not err in denying defendant's motion for a mistrial when a detective testified that he had gotten information about an unspecified previous charge against defendant in Maryland, although such testimony was improper under N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 404 (b), where the trial court sustained defendant's objection and instructed the jury to disregard the incompetent evidence,<page_number>Page 720</page_number> and where the evidence could not have resulted in substantial and irreparable prejudice to defendant's case in light of his confession and the corroborating evidence that supported it. N.C.G.S. <cross_reference>15A-1061</cross_reference>. 2. Criminal Law 102.6 — prosecutor's jury argument — no appeal to base decision on community sentiment The prosecutor's jury argument in this first degree murder case did not improperly appeal to the jury to decide the case based on community sentiment but appears to urge that cases should be decided on the evidence and the rule of law rather than on the sympathies of juries. Therefore, the trial court did not abuse its discretion in allowing such argument.

Accounts 1 — open account — contract with individual defendant — summary judgment improper The Court of Appeals erred in affirming the entry of summary judgment for the individual defendant in an action on an open account where a genuine issue of material fact was presented as to whether plaintiff manufactured and delivered its product pursuant to a contract with the individual defendant or whether plaintiff contracted solely with the corporate defendant.

1. Jury 6 — prospective jurors — refusal to sequester — comments about death penalty The trial court did not abuse its discretion by refusing to sequester prospective jurors in a first degree murder case because of comments by two prospective jurors concerning the Biblical basis for the death penalty and a comment by a third prospective juror that a life sentence "does not mean that they will be in there for life and they are capable of committing this crime again" where defense counsel's question elicited the remark by the third prospective juror; all three of these prospective jurors were excused and never sat on the case; and defendant did not receive the death penalty but received a life sentence. N.C.G.S. <cross_reference>15A-1214</cross_reference> (j). 2. Homicide 20.1 — photographs and videotape of victim's body — denial of motion to limit The trial court did not err in denying defendant's motion to limit the State's photographic evidence of a homicide victim's body where this evidence included four photographs depicting all or part of the victim's body and a videotape of the crime scene which included the body; the<page_number>Page 739</page_number> photographs and videotape were used to illustrate testimony as to the location and condition of the victim's body; and each photograph showed something different, none was especially inflammatory, and the total amount of photographic evidence was not excessive.