Volume 322 — North Carolina Reports

Rape and Allied Offenses 5 — sexual offense — penetration of genital opening — sufficient testimony by child victim Testimony by the six-year-old victim that defendant placed his hand between her legs and put his finger in her "private spot," "cootie" and "pee-pee" constituted sufficient evidence of penetration of the victim's genital opening to support defendant's conviction of a first degree sexual offense.

1. Jury 6 — murder prosecution — individual voir dire denied — no error The trial court did not abuse its discretion in a murder prosecution by denying defendant's motion for individual voir dire and sequestration of potential jurors, and the Supreme Court declined defendant's invitation to adopt the rule that judges in criminal cases should always exercise their discretion in favor of selecting jurors one at a time with jurors being sequestered, unless there is some reason for not doing so. N.C.G.S. <cross_reference>15A-1214</cross_reference>(j). 2. Jury 6.3; Criminal Law 5 — voir dire — prosecution's comment on insanity — objection not sustained — no expression of opinion The trial judge in a murder prosecution did not impermissibly express an opinion by failing to sustain defendant's objection to a comment by the prosecutor during voir dire questioning of jurors which, defendant contended, was a statement that a plea of insanity was an attempt by defendant to escape the consequences of unlawful conduct. A contextual reading of the comment indicates that the district attorney was simply telling the panel that the burden<page_number>Page 153</page_number> of proof on insanity rests with defendant; furthermore, there was no impermissible expression of opinion by the court. N.C.G.S. <cross_reference>15A-1222</cross_reference>. 3. Jury 5 — murder — juror excused for cause — admonished in presence of other jurors — no error There was no error in a murder prosecution where the judge excused a prospective juror for cause, then admonished her in the presence of other prospective jurors for taking a position against the death penalty based solely upon her apparent desire to avoid having to serve upon the jury. 4. Jury 6.3 — voir dire — pregnant juror — questions as to medical condition not allowed There was no prejudice in a murder prosecution from the trial court's refusal to allow defendant to examine a pregnant potential juror about her medical condition, forcing defendant to use a peremptory challenge. Where defendant did not exhaust all of his peremptory challenges. 5. Jury 7.11 — murder — juror excused for cause for opposition to death penalty — no error The trial court in a murder prosecution did not err by excusing for cause a juror whose answers, in context, showed that she could not under any circumstances vote to impose the death penalty against anyone. 6. Jury 7.11; Constitutional Law 63 — murder — death qualified jury — no error The trial court did not err in a murder prosecution by permitting the district attorney to death qualify the jury. 7. Jury 6.4 — murder — defendant's questions as to death penalty beliefs — excluded — no error The trial court did not abuse its discretion in a murder prosecution by not permitting prospective jurors to answer defendant's questions as to whether they believed the death penalty was imposed too often or whether it should be imposed for crimes other than murder. 8. Criminal Law 5.1 — murder — insanity raised — pretrial order for psychiatric examination — objection waived by introduction of testimony In a prosecution for first degree murder where defendant raised insanity, the defendant waived any right to object to the trial court's order to undergo a psychiatric examination to determine his mental state at the time of the crimes where defendant called the psychiatrist to testify on his own behalf and tendered him as an expert witness. 9. Criminal Law 50.2 — murder — law testimony concerning defendant's relationship with parents excluded — no prejudice The defendant in a murder prosecution was not prejudiced by the court's refusal to allow lay testimony concerning his relationship with his parents during early childhood where defendant presented the same evidence through his expert witnesses.<page_number>Page 154</page_number> 10. Homicide 15.4 — expert testimony — defendant's state of mind at time of homicides The trial court did not err in a first degree murder prosecution in which malice was an issue by not permitting defendant's experts to testify that at the time of the killings, defendant did not act in a cool state of mind, that he was acting under a suddenly aroused violent passion, that he did not act with deliberation, and that his ability to conform his behavior to the requirements of the law was impaired. The trial court admitted a substantial portion of the proffered expert testimony related to defendant's mental condition at the time of the homicides; the excluded testimony embraced precise legal terms, definitions of which are not readily apparent to medical experts; and having the experts testify as requested would have confused rather than helped the jury. 11. Criminal Law 77.2 — oral statement by defendant — subsequent written statement — excluded — no error The trial court in a murder prosecution did not err by excluding a written statement by defendant where defendant made oral statements to an officer, an SBI agent asked defendant to write out a statement later that afternoon, the agent left town for a few hours, defendant told him on his return that he had given the statement to his lawyer, the State introduced the oral statements, and defendant attempted to introduce the written statement as a part of the whole confession. The written statement was not made at the same time as the oral statements and the State did not open the door. 12. Criminal Law 87.4 — redirect examination — evidence excluded — no error The trial court did not err in a prosecution for first degree murder by sustaining the State's objections to defendant's redirect questions concerning whether a psychiatrist's diagnosis of defendant's mental condition was substantially the same as an Air Force diagnosis. Defendant's Air Force medical records were not discussed either on direct or on cross-examination of the witness, so that no clarification of testimony was needed, and the testimony that defendant attempted to elicit was substantially the same testimony that was previously admitted through another expert witness. 13. Criminal Law 73 — hearsay — victim's state of mind — excluded — no prejudicial error The trial court did not err in a murder prosecution by refusing to admit evidence of the mental status of the victim under N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 803(3) where the very same testimony was elicited from various witnesses throughout the trial. N.C.G.S. <cross_reference>15A-1443</cross_reference>(a). 14. Constitutional Law 30 — defendant's statements — not disclosed within statutory time frame — admissible The trial court did not err in a murder prosecution by admitting statements made by defendant where, although certain statements were not disclosed within a time frame provided by N.C.G.S. <cross_reference>15A-903</cross_reference>(a)(2) (1983), they were disclosed within a reasonable time of the State's learning of the statements, and defendant was given a synopsis of other oral statements.<page_number>Page 155</page_number> 15. Homicide 30.2 — first degree murder — failure to submit manslaughter — no error The trial court did not err in a murder prosecution by failing to submit the possible verdict of voluntary manslaughter where neither the State's evidence nor the evidence offered by defendant supports defendant's assertions that the killings were done in a heat of passion provoked by the victims; the State's evidence tended to show an intentional killing with a deadly weapon, thereby raising the presumption of malice; while defendant did present some evidence that his parents were concerned about an excessive phone bill, there was no evidence of any confrontation on the night of the killings or that the killings were provoked by either victim; and, although a gun other than the murder weapon was found on the floor of defendant's father's bedroom, there was no evidence tending to show that either of the victims was the aggressor and had confronted defendant with the gun prior to the killings. 16. Homicide 25.1 — double murder — felony murder submitted to jury — no error The trial court did not err by submitting to the jury the possible verdict of guilty of first degree murder of his stepmother under the felony murder rule where the underlying felony was the murder of his father. N.C.G.S. <cross_reference>14-17</cross_reference>. 17. Criminal Law 112.6 — insanity — burden of proof — failure to define satisfaction — no error The trial court did not err in a murder prosecution by instructing the jury that defendant must prove insanity to the jury's satisfaction without defining satisfaction. 18. Criminal Law 135.4 — double murder — felony murder — judgment on underlying murder arrested Judgment on defendant's conviction for the second degree murder of his father was arrested where defendant was also found guilty of the felony murder of his stepmother, using his father's murder as the underlying felony.

1. Criminal Law 138.23 — burglary — aggravating factor — armed with deadly weapon — not improper finding of use of weapon The trial judge's statement that he found that defendant was "armed" with a hammer and that he "used it horribly," together with the judge's reference to "those statutory items," did not amount to findings of both possession and use of the weapon as two distinct aggravating factors where the findings sheet upon which the aggravating and mitigating factors were recorded unambiguously reveals that the weapon used by defendant in perpetrating the crime gave rise only to the aggravating factor that "defendant was armed with a deadly weapon at the time of the crime" and that "use" of the weapon was not found by the court in its consideration of the appropriate punishment. 2. Criminal Law 138.23 — armed with deadly weapon — element of felonious assault — use to aggravate burglary sentence The trial court did not violate N.C.G.S. 15A-1340.4(a)(1) by using an element of a joined felonious assault offense — that defendant was armed with a deadly weapon — as a factor in aggravation of defendant's sentence for first degree burglary, since the phrase "the offense" as used in that statute refers to the offense for which the defendant is convicted or to which defendant tenders a plea of guilty. 3. Criminal Law 138.29 — nonstatutory aggravating factor — purposes of sentencing sufficiency of evidence The trial court did not err in finding as a nonstatutory aggravating factor for first degree burglary that defendant "had inside information, knowing when that lady was alone in a rural area and took advantage of it with the keys" on the basis of evidence that defendant, the victim's next-door neighbor had inquired of the victim as to whether the victim's daughter was staying elsewhere on the evening of the crime, and evidence that defendant used keys to the victim's mobile home surreptitiously copied from the victim's keys while they were entrusted to his wife, since (1) this nonstatutory factor was clearly related to the purposes of sentencing in that defendant's behavior was of the type from which the public should be protected and from which possible future offenders should be deterred, and (2) this factor was amply supported by the evidence.

Criminal Law 75.14 — first degree murder — waiver of rights — findings as to mental capacity sufficient The trial court in a first degree murder prosecution did not err in finding that defendant was not depressed and in concluding that defendant freely, knowingly and intelligently waived his constitutional rights where the majority of officers present during different stages of the interrogation testified that defendant appeared normal; there was substantial evidence tending to show that defendant was not actively suicidal at the time he arrived at the police station and rendered his confession; a psychiatrist testified during cross-examination that although defendant had a feeling he should be punished for what he had done, he was still aware of his rights and what he could do to protect those rights at the time he made his confession; defendant was advised on three separate occasions of his constitutional rights and the consequences flowing from a waiver of those rights; and defendant testified that at the time he<page_number>Page 289</page_number> confessed he knew that he did not have to speak to the officers, that he had the right to legal representation, and that he could stop the interrogation at any time.

1. Rape and Allied Offenses 4.3 — victim's sexual behavior — impeachment of testimony — exclusion of expeditionary questions Even though the State, by eliciting testimony of a rape victim on direct examination that she had not had intercourse with any man other than defendant prior or subsequent to the date of the crime, may have opened the door to defendant's introduction of evidence for impeachment purposes regarding the victim's sexual behavior, mere expeditionary questions which defendant asked the victim on cross-examination were properly excluded by the trial court under the rape shield statute. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 412(b) (1986). 2. Criminal Law 169.3 — defendant's statement of birthdate — absence of Miranda warnings — erroneous admission cured by other evidence Assuming, arguendo, that the court in a first degree rape case erred in admitting defendant's statement to an officer as to his birthdate because defendant had not been given the Miranda warnings, such error was harmless beyond a reasonable doubt in view of testimony as to defendant's age, birthdate, or both by the victim and by defendant's mother, father, sister and niece. 3. Rape and Allied Offenses 11 — rape of child under age thirteen — sufficiency of evidence 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) (1986) where the victim<page_number>Page 303</page_number> testified that in September 1986 defendant penetrated her vagina with his penis for a period of five to ten minutes, that she was born on 7 January 1975, and that she was eleven years old in September 1986, and where several witnesses testified that defendant was born on 20 July 1968, thus making him eighteen years old and more than four years older than the victim at the time of the offense.

1. Criminal Law 53, 162.2 — sexual offenses — opinion of treating physician — objection too late There was no plain error in a prosecution for first degree sexual offense, attempted first degree sexual offense, and armed robbery where defendant challenged the admissibility of a doctor's opinion that some event had happened which led to the mental state of the victim, but defendant's objection and motion to strike were made after the prosecutor had asked the doctor for his opinion, the doctor had responded, and the prosecutor had proceeded to the next question. The Supreme Court was unable to conclude that any error caused the jury to reach a different verdict, and declined defendant's invitation to suspend the rules of appellate procedure. N.C.G.S. <cross_reference>15A-1443</cross_reference>, N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 103(a)(1) (1986), N.C. Rules of App. Procedure, Rule 2.<page_number>Page 310</page_number> 2. Criminal Law 73.4 — destruction of evidence — explanation — present sense impression exception to hearsay rule The trial court did not err in a prosecution for first degree sexual offense, attempted first degree sexual offense, and armed robbery by admitting a detective's testimony as to what the captain of the identification bureau had said while destroying the rape kit. Assuming that the testimony was hearsay, it came within the present sense impression exception of N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 803(1) because the event and the statement occurred simultaneously and the statement was in explanation of the event.

Criminal Law 33, 35 — subornation of testimony against defendant — evidence of motive In a prosecution for sexual offenses allegedly committed upon defendant's stepsons, defendant's evidence that she, her husband and the oldest stepson consulted a lawyer for the purpose of bringing an action to obtain custody of the stepsons from their natural mother shortly before the mother accused defendant of sexual offenses against them was relevant and admissible under N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 401 to support and make more plausible defendant's evidence that the natural mother suborned the boys' testimony, and the trial court's exclusion of such evidence was prejudicial error since it is reasonably<page_number>Page 316</page_number> possible that there would have been a different result at trial had the evidence not been excluded. N.C.G.S. <cross_reference>15A-1443</cross_reference>(a).

1. Constitutional Law 31 — murder — private investigator — denied — no error The trial court did not err in a prosecution for first degree murder by denying defendant's motion for the appointment of an investigator where defendant did not make the requisite threshold<page_number>Page 350</page_number> showing of specific necessity in that defendant's motion contained only general allegations that defendant's attorney did not have the time or expertise to conduct the investigation, that a trained criminal investigator was needed because witnesses might be reluctant to speak, and that defendant could not obtain an adequate defense and a fair trial without an expert criminal investigator. 2. Jury 6 — individual voir dire and sequestration denied — no error The trial judge in a murder prosecution did not err by denying defendant's motion for individual voir dire and sequestration of jurors during voir dire where neither the record nor defendant's argument revealed any basis for holding that the denial of the motion could not have been the result of a reasoned decision by the trial judge; moreover, defendant's argument relates primarily to the views of prospective jurors on the death penalty, which defendant did not receive. 3. Criminal Law 91.1 — pretrial motions — continuance denied — no error The trial court did not err in a murder prosecution by not acting ex mero motu to continue a hearing on certain pretrial motions in order to provide defendant's court-appointed counsel adequate time to confer with retained counsel in preparation for the hearing where retained counsel had been in the case for at least three and a half months when the motions were heard and the record does not establish or even suggest that either counsel was not fully prepared to argue defendant's motions. 4. Homicide 21.5 — first degree murder — motion to dismiss properly denied The trial court did not err in a murder prosecution by denying defendant's motion to dismiss where the evidence, viewed in the light most favorable to the State, clearly constituted substantial evidence that defendant committed the offense charged. The credibility of an accomplice who testified for the State, and his interest in the outcome, were matters for the jury to consider. 5. Homicide 8.1 — murder — intoxication — motion to dismiss properly denied The trial court did not err by denying defendant's motions to dismiss a charge of murder on the ground that defendant was so impaired by intoxication that he was incapable of forming a deliberate and premeditated purpose to kill where, although there was evidence that defendant was highly intoxicated, there was also evidence from which the jury could have found that defendant nevertheless retained the capacity to premeditate and deliberate. 6. Criminal Law 98.1 — murder — emotional display by victim's widow — jury not instructed ex mero motu The trial court did not err in a murder prosecution by failing to instruct the jury ex mero motu to disregard a display of emotion by the victim's widow where defendant did not request a curative instruction or move for a mistrial; furthermore, the trial judge witnessed the incident and was in a position to gauge its effect on the jury. N.C.G.S. <cross_reference>15A-1061</cross_reference>.<page_number>Page 351</page_number> 7. Criminal Law 73.2 — murder — admission of newspaper story and photograph of crime scene — no error The trial court did not err in a murder prosecution by admitting a copy of a newspaper containing a story about the death of the victim and a photograph of investigative officers making casts of tire prints at the crime scene where the article and photograph were not offered to prove the truth of the matter asserted or depicted, but to corroborate testimony, and there was no prejudice in that the article and photograph related entirely to routine crime scene investigation, they did not in any way implicate defendant, and the testimony of the State's witnesses exposed the jury to the same information in considerably greater detail. 8. Criminal Law 90 — murder — defense counsel not allowed to impeach defendant with prior convictions — no prejudice There was no prejudice in a murder prosecution from the trial judge's refusal to allow defendant to be impeached by defense counsel with evidence of his prior convictions where, although the credibility of a witness may be attacked by any party, including the party calling him, there was no offer of proof as to the matter excluded, the question was not one to which the answer was apparent from the context and the brief exchange was incidental in the context of a lengthy trial. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 607. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 103(a)(2). 9. Criminal Law 102.6 — argument of prosecutor — misstatement of fact — no intervention ex mero motu The trial court did not err in a murder prosecution by not intervening ex mero motu to instruct the jury as to a misstatement of the evidence by the district attorney in his closing argument where the argument was inaccurate in detail but not so grossly improper or prejudicial that the court should have been expected to intervene ex mero motu.

1. Divorce and Alimony 30 — equitable distribution — military pension — no constitutional violation Defendant in an equitable distribution action lacked standing to argue that Art. X, 4 of the North Carolina Constitution violates the federally protected rights of married men to equal protection and due process in that property acquired by married men can be subject to equitable distribution while property acquired by women cannot. There was no indication in this case that any property acquired by the plaintiff-wife during the marriage was excluded from equitable distribution. N.C.G.S. <cross_reference>50-20</cross_reference>, N.C.G.S. <cross_reference>50-21</cross_reference>. 2. Divorce and Alimony 30 — equitable distribution — military pension — not retroactive taking or taking without compensation A defendant in an equitable distribution action was not denied due process and equal protection in that subjecting his military pension to equitable distribution amounted to a retroactive taking or a taking without compensation. Defendant's acquisition of property during marriage but prior to the effective date of the Equitable Distribution Act does not mean that he also acquired a vested right in the law governing the disposition of property upon divorce. N.C.G.S. <cross_reference>50-20</cross_reference>, N.C.G.S. <cross_reference>50-21</cross_reference>, Art. I, 19 of the North Carolina Constitution, Amendment XIV of the United States Constitution. 3. Divorce and Alimony 30 — equitable distribution — written findings of fact required in every case The trial court erred in an equitable distribution action by not making findings of fact to support its equal division of the marital portion of defendant's military pay because written findings of fact<page_number>Page 397</page_number> are required in every case in which a distribution of marital properties is ordered under the Equitable Distribution Act. N.C.G.S. <cross_reference>50-20</cross_reference>. 4. Divorce and Alimony 30 — equitable distribution — military pension — findings insufficient The trial court did not make sufficient findings of fact in an equitable distribution action involving a military pension where evidence was presented concerning the relative incomes of the parties, their health, and other matters tending to show that an equal division would be inequitable. Once such evidence was introduced, it became necessary for the trial court to consider the factors set out in N.C.G.S. <cross_reference>50-20</cross_reference>(c) in determining an equitable property division and to make findings sufficient to address the statutory factors and support the division ordered.

Criminal Law 89.4 — defense witness — no impeachment by use of extrinsic evidence of prior inconsistent statements Where one of defendant's witnesses denied that defendant had told him that he raped the victim, and the witness denied that he had told his probation officer and an employee of the officer that defendant told him he had raped the victim, the trial court erred in allowing the State to call the probation officer and the employee to testify that the witness had told them of defendant's statement, since the State may not impeach a defense witness by use of extrinsic evidence of prior inconsistent statements; furthermore, where the question of defendant's guilt hinged solely upon whether the jury believed his or the prosecutrix's testimony, there was a reasonable possibility of a different result had the evidence not been erroneously admitted.

Criminal Law 122.2 — jury deliberations — inquiries by court — no coercion The trial court did not coerce a jury into reaching a verdict in a prosecution for first degree rape, first degree sexual offense, and first degree kidnapping where the record shows that the court was at all times polite to the jury; it did not intimate that it would be displeased with them if the jury failed to reach a verdict; it did not threaten to hold them on the jury for any length of time if they did not reach a verdict; and it did not tell them every trial would be a burden on the court system. The fact that the jury deliberated for a considerable length of time and into the weekend, the several inquiries made of the jury by the court, the length of time the jury deliberated relative to length of trial and the fact that the numerical division was reported at one point as being eleven to one do not show that there was coercion. N.C.G.S. <cross_reference>15A-1235</cross_reference>(b).

1. Constitutional Law 50 — Sixth Amendment right to speedy trial — trial eleven months after arrest — no constitutional violation There was no violation of defendant's Sixth Amendment right to a speedy trial in a first degree murder prosecution because defendant's trial was eleven months after his original arrest where much of the evidence and much of the laboratory analysis was being handled through Georgia law enforcement agencies; defendant filed numerous motions at various times; the record does not reflect that defendant at any time sought to have the case brought to a speedy trial; defendant failed to demonstrate that his ability to present his defense was impaired; and there was no indication of neglect or willfulness on the part of the prosecution. 2. Criminal Law 91.14 — Speedy Trial Act — 134 days from indictment to motion to dismiss — no violation There was no violation of the Speedy Trial Act in a first degree murder prosecution where 134 days elapsed from defendant's indictment to his motion to dismiss because all but 70 days were excluded by continuances granted by the court based upon a determination that each continuance would serve the ends of justice. A particular order which granted "the continuance" referred to a particular continuance which the State had requested and was not openended. N.C.G.S. <cross_reference>15A-701</cross_reference>(b)(7). 3. Constitutional Law 31 — first degree murder — denial of private investigator — no abuse of discretion There was no abuse of discretion in a first degree murder prosecution from the denial of defendant's motion for a court-appointed private investigator where defendant broadly stated that the case was complicated and involved a large number of witnesses, but failed to point to any evidence that might have been obtained by a private investigator and been beneficial to its defense. N.C.G.S. <cross_reference>7A-450</cross_reference>(b). 4. Constitutional Law 30 — first degree murder — discovery denied — no error There was no error in a first degree murder prosecution from the denial of defendant's pretrial motions for discovery where there was no indication that there was any favorable evidence to be disclosed as to defendant's use of public transportation; the State fully complied with statutory requirements for disclosing agreements between prosecutors and any potential witnesses, and there is no mention in N.C.G.S. <cross_reference>15A-1054</cross_reference>(c) of law enforcement agencies; and defendant was not prejudiced by the denial of his motion to require the State to divulge any prior association of a witness with law enforcement agencies where defendant was already aware that the witness had operated in the past as a police informant and there is no statutory or other authority for the proposition that the information sought here is of a type properly subject to mandatory disclosure.<page_number>Page 488</page_number> 5. Criminal Law 91.2 — first degree murder — motion for continuance — pretrial publicity from another murder — denied The trial court did not err in a first degree murder prosecution by denying defendant's motion for a continuance based upon local publicity arising from the arrest of a suspect in a different murder case three and a half weeks prior to defendant's trial where defendant did not exhaust his peremptory challenges and failed entirely to make any showing that the denial of his motion for continuance made it impossible to obtain a fair trial before an impartial jury. 6. Jury 6 — first degree murder — individual voir dire and sequestration of jurors denied — no abuse of discretion The trial court did not abuse its discretion in a first degree murder prosecution by denying an individual voir dire and sequestration of individual jurors. N.C.G.S. <cross_reference>15A-1214</cross_reference>(j). 7. Jury 7.14 — murder — peremptory challenges — not racially motivated A first degree murder defendant failed to carry his initial burden of establishing an inference of purposeful discrimination in a prosecutor's use of peremptory challenges where the case involved the killing of a black woman by a black man; five black persons were called as potential jurors; two of the potential jurors were peremptorily challenged by the State; one was dismissed by the trial court because he had sat in the courtroom on the previous day during hearings on motions; and the other two blacks were seated on the jury. Art. I, 26, N.C. Constitution. 8. Criminal Law 42.1 — first degree murder — admission of insulation particles — no error The trial court did not err in a first degree murder prosecution by admitting into evidence certain insulation particles where the State's theory of the case was that defendant crawled through an attic linking his girlfriend's duplex unit with that of the victim; pieces of insulation were found in the victim's apartment; and material taken from defendant's clothing was consistent with the sample pieces of insulation taken from the attic. The evidence was relevant, defendant was under lawful arrest when clothes containing the fibers were taken from him, and defendant had shown no way in which the admission of the evidence in question unfairly prejudiced his case. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 403. 9. Criminal Law 43.4 — first degree murder — photographs admissible The trial court did not err in a first degree murder prosecution by admitting certain photographs where three of the five photos showed the victim's body as found in the trunk of a car in an Atlanta parking lot, each was admitted to illustrate specific testimony of the parking lot attendant, and the victim's body appeared in each to be fully clothed and apparently bore no obvious signs of trauma or serious injury. The photos were not excessive in number and were not excessively gruesome or inflammatory.<page_number>Page 489</page_number> 10. Criminal Law 42.1 — murder — evidence as to insulation particles — no unfair surprise Defendant was not unfairly surprised or prejudiced in a first degree murder prosecution by the testimony of an SBI agent that insulation was found throughout the victim's apartment and that the covering to the attic access was not pulled down tight; moreover, even assuming error, defendant did not show a reasonable possibility that a different result would have been reached absent the error. N.C.G.S. <cross_reference>15A-1443</cross_reference>(a). 11. Criminal Law 88 — murder — irrelevant items — cross-examination not erroneously limited The trial court in a first degree murder prosecution did not erroneously limit defendant's right of cross-examination by granting the State's motion to prevent discussion of certain items which were not relevant to this case. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 402. 12. Criminal Law 89.10 — criminal activities and charges — limiting impeachment of witnesses — harmless error Assuming arguendo that the trial court erroneously limited defendant's right to impeach two State's witnesses by cross-examining them concerning criminal activities or pending charges, the error was harmless beyond a reasonable doubt in light of the overwhelming evidence against defendant. N.C.G.S. <cross_reference>15A-1443</cross_reference>(b).

Criminal Law 34.1 — trial on murder charges — defendant in jail on another charge — irrelevancy In a prosecution for two first degree murders, the trial court erred in permitting an inmate who was in jail with defendant and who testified as to inculpatory statements made by defendant to testify that defendant had told him that he was in jail for the attempted murder of his girlfriend and in permitting a detective to testify that defendant was in jail for assaulting his girlfriend with a deadly weapon with intent to kill, since this testimony was not necessary to show the full context of defendant's inculpatory statements or to show any confidential relationship between defendant and his fellow inmate, and the testimony was not relevant to any fact in issue concerning the murder charges other than the character of the accused. N.C.G.S. <cross_reference>1A-1</cross_reference>, Rules 401, 402 and 404.

1. Criminal Law 138.23 — aggravating factor — armed with deadly weapon The evidence supported the trial court's finding in aggravation that defendant was armed with a deadly weapon at the time he broke or entered the victim's dwelling house where testimony showed that defendant acquired a revolver when he shot a highway patrolman and still had it with him when he was captured, and a codefendant's testimony from his own sentencing hearing provided direct evidence that defendant had the patrolman's revolver at the time he entered the victim's house. Furthermore, this factor was properly found even though defendant made no use of the deadly weapon. N.C.G.S. 15A-1340.4(a)(1)i (1983). 2. Criminal Law 138.24 — aggravating factor — age of breaking or entering victim The trial court properly found as an aggravating factor that the victim of a breaking or entering was very old even though the victim was not at home at the time of the crime where the evidence showed that the victim was seventy-five years old and that defendant saw the victim and was aware that she was an older woman living in an isolated area before he decided to break and enter her residence, since the trial court could reasonably infer that defendant chose the victim as a target knowing that if she returned while he was in the house she would, by reason of age, be unlikely to effectively intervene or defend herself.

1. Rape and Allied Offenses 5 — rape — serious personal injury — evidence sufficient There was sufficient evidence to establish the serious personal injury element of first degree rape and first degree sexual offense where the State's evidence tended to show that defendant choked the victim into unconsciousness three times; her jeans were tied around her<page_number>Page 734</page_number> neck and used to drag her nude body through a wooded area where she was left; she had a deep red ring around her throat and bruises and abrasions over nearly her entire body; the victim testified that the defendant had tried to put her eyes out with his thumbs; and one witness testified that the victim's eyes were "red as tomatoes and swollen real bad." N.C.G.S. <cross_reference>14-27.2</cross_reference>(a)(2)b, N.C.G.S. <cross_reference>14-27.4</cross_reference>. 2. Robbery 4.2 — common law robbery — felonious intent — evidence sufficient The trial court properly denied defendant's motions to dismiss the charge of common law robbery based on an alleged failure of the State to present substantial evidence of felonious intent where no direct evidence established the defendant's intent at the time of the taking, but the evidence tended to show that after the rape and sexual offenses the defendant threw the victim's clothing out of the car, kept her pocketbook containing fifty dollars, and disposed of the pocketbook the next day. 3. Rape and Allied Offenses 6 — rape — serious injury — instructions The trial court did not err in its instructions on the element of serious injury in a prosecution for rape and sexual offenses where the court instructed the jury on mental injury even though there was no evidence of mental injury in the present case because the trial court corrected its instructions on the element of serious injury when the lack of any evidence tending to show mental injury was drawn to the court's attention. The curative instruction prevented any confusion and the trial court left the jury with an accurate instruction as to serious personal injury. 4. Criminal Law 122.1 — additional instructions after jury retired — no error In a prosecution for sexual offenses, rape, kidnapping, and common law robbery in which the jury requested additional instructions after it had begun deliberations, the trial court did not abuse its discretion by not giving defendant's special instructions verbatim where the court instructed the jury in substantial conformity with defense counsel's request. 5. Rape and Allied Offenses 6.1 — rape — request for instruction on assault on female as lesser included offense — denied — no error The trial court did not err by denying defendant's request for an instruction on the offense of assault on a female as a lesser included offense of rape because assault on a female contains elements not present in the greater offense of rape and therefore is not a lesser included offense. 6. Rape and Allied Offenses 4.3 — rape — limited cross-examination of victim — no error The trial court did not err in a prosecution for sexual offenses, rape, kidnapping, and common law robbery by not admitting testimony from the victim regarding an incident in which she was allegedly "making out" with a defense witness. The evidence in question did not fall within any of the exceptions of the Rape Shield Statute. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 412 (1986). 7. Criminal Law 102 — statements by prosecutor — no prejudice There was no prejudice in a prosecution for rape, kidnapping, sexual offenses, and common law robbery from statements made by the<page_number>Page 735</page_number> prosecutor where no objections were made to some of the statements. Objections were made and sustained and curative instructions were given to others, and objections to some statements were properly overruled. 8. Bills of Discovery 6; Constitutional Law 30 — defendant's pretrial statement — defendant provided with tape recording three days before trial — mistrial and discovery sanctions denied — no abuse of discretion The trial court did not abuse its discretion in a prosecution for rape, sexual offense, kidnapping, and robbery by denying defendant's motions for discovery sanctions, for a continuance, or for a mistrial where defendant was provided with the substance of his statement by way of a copy of an officer's written report on 29 March 1987; defense counsel became aware of the existence of a tape recorded version of the statement on 14 July 1987, three days before the introduction of the written report at trial; defense counsel was given an opportunity to listen to the tape on that same date; and defendant neither had the tape recording analyzed nor scheduled a further date upon which to have it analyzed, and did not call an officer who was present throughout the interview to clarify any inaudible portions of the recording. 9. Bills of Discovery 6; Constitutional Law 30 — failure to disclose footprint comparison — refusal of discovery sanctions — no abuse of discretion The trial court did not abuse its discretion in a prosecution for rape, sexual offense, kidnapping, and common law robbery by refusing to sanction the State for failure to disclose the results of footprint comparisons where defendant did not object or request sanctions when the State offered the evidence. 10. Criminal Law 42.4, 43.1 — introduction of photograph of defendant and gun — no error The trial court did not err in a prosecution for rape, sexual offense, kidnapping, and common law robbery by introducing an officer's testimony about a rifle found in defendant's car when he was arrested or another officer's testimony about her identification of a photograph of defendant. The mere fact that defendant possessed a firearm at the time of his arrest does not imply that he either used or intended to use the rifle for illegal purposes, and the fact that an officer was able to positively identify a photograph of defendant shortly after seeing him lends credence to her subsequent identification of him at trial. There was neither testimony nor markings on the photograph that would identify it as a mug shot. 11. Criminal Law 75.2 — admissibility of confession — finding of no threats or promises — no error In a prosecution for rape, sexual offense, kidnapping, and common law robbery, the trial court's findings of fact and conclusion that defendant's inculpatory statement was voluntary was supported by competent evidence where an officer testified that defendant was read his rights and that he waived his right to remain silent and his right to counsel; defendant acknowledged his waiver by signing a waiver of rights form; and, although defendant presented contradictory testimony, the officer testified that on numerous occasions he and another officer told defendant that they could not negotiate plea bargains.<page_number>Page 736</page_number> 12. Criminal Law 91.6 — newly-obtained evidence — denial of continuance — no error The trial court did not err in a prosecution for rape, sexual offense, kidnapping, and common law robbery by denying defendant's motion for a continuance where defense counsel learned of a tape recording of defendant's statement three days prior to its introduction at trial, was given a written report of the substance of his statement months before trial, was given access to the tape recording in ample time to prepare a probing cross-examination when the tape recorded version of defendant's statement was introduced during rebuttal, defendant cross-examined an officer regarding the contents of the tape recording, and defendant could have called another officer to clarify the contents of the tape recording if any doubts about its contents remained.