Volume 326 — North Carolina Reports

1. Physicians, Surgeons, and Allied Professions 17.1 (NCI3d) — informed consent — summary judgment for surgeon The trial court properly entered summary judgment for defendant surgeon on the issue of plaintiff's informed consent to gastroplasty surgery where opinion testimony by another surgeon and by defendant that defendant's treatment of plaintiff satisfied the applicable standard of care was sufficient to encompass the issue of informed consent and to satisfy the requirements of N.C.G.S. <cross_reference>90-21.13</cross_reference> (a)(1); and the record established without contradiction that defendant discussed the gastroplasty procedure generally with plaintiff and provided her with written information on the surgery and its risks, and that plaintiff did in fact read the information provided and accepted the risks described therein. <block_quote> Am Jur 2d, Physicians, Surgeons, and Other Healers 187-192, 194, 195.</block_quote> 2. Physicians, Surgeons, and Allied Professions 17.1 (NCI3d) — informed consent statute — compliance with all subsections not required The informed consent statute, N.C.G.S. <cross_reference>90-21.13</cross_reference> (a), does not require the health care provider to establish compliance with all three subsections; it is sufficient if the provider can demonstrate that no genuine issue of fact exists under subsections (1) and (2). <block_quote> Am Jur 2d, Physicians, Surgeons, and Other Healers 187-192, 194, 195.</block_quote><page_number>Page 25</page_number> 3. Physicians, Surgeons, and Allied Professions 17.1 (NCI3d) — informed consent — experience of surgeon The informed consent statute imposes no duty on a health care provider to discuss his or her experience, and such a duty will not be imposed in a case where plaintiff's allegations about defendant surgeon's lack of experience in performing gastroplasty surgery are founded on her speculative and erroneous assumptions about the location of defendant's surgical experience. <block_quote> Am Jur 2d, Physicians, Surgeons, and Other Healers 187-192, 194, 195.</block_quote>

Criminal Law 150 (NCI4th) — sentencing — defendants' refusal to accept plea bargain — consideration by court — new sentencing hearing Defendants' constitutional right to a jury trial was abridged and they are entitled to a new sentencing hearing in an armed robbery case where the trial court, upon being advised that defendants had refused to accept a plea bargain and demanded a jury trial, told counsel in no uncertain terms that if defendants were convicted he would give them the maximum sentence. The Fair Sentencing Act did not insulate the pretrial remarks of the trial court from the sentencing process since it cannot be concluded that the sentences imposed were based solely upon the evidence, the argument of counsel, the aggravating and mitigating factors found by the trial court, and the balancing of those factors. Am Jur 2d, Criminal Law 481, 483, 504.

1. Municipal Corporations 30.10 (NCI3d) — subdivision ordinance — conveyance of recreation area to homeowners' association A city has the authority under N.C.G.S. <cross_reference>160A-372</cross_reference> to provide by ordinance for the conveyance of an open space recreation area to a homeowners' association in accordance with a subdivision plat previously approved by the city. <block_quote> Am Jur 2d, Dedication 32; Zoning and Planning 106, 123, 163.</block_quote><page_number>Page 101</page_number> 2. Municipal Corporations 30.10 (NCI3d) — subdivision ordinance — conveyance of common areas to homeowners' association A city subdivision ordinance required the conveyance of common areas depicted on a preliminary plat to a homeowners' association where no amendment thereto had been approved and the project had been substantially developed in accordance with the preliminary plat. <block_quote> Am Jur 2d, Dedication 32; Zoning and Planning 106, 123, 163.</block_quote> 3. Municipal Corporations 30.10 (NCI3d) — subdivision project — common area on preliminary plat — refusal to permit development — proper exercise of police power Where a city approved the application for a phased subdivision development on the condition that actual development would be in substantial conformance with the project as depicted on the preliminary plat, and the project was substantially developed in accordance with the preliminary plat, the city did not improperly exercise its police power by refusing to process an application to develop three acres originally depicted as a common recreation area on the preliminary plat even though the common area shown on the preliminary plat exceeds the minimum required by city ordinance. <block_quote> Am Jur 2d, Dedication 32; Zoning and Planning 106, 123, 163.</block_quote> 4. Municipal Corporations 30.10 (NCI3d) — subdivision ordinance — conveyance of open space to homeowners' association — no taking of property A city subdivision ordinance providing for conveyance of open space to an association of homeowners living within the subdivision is reasonably related to the purpose of preserving urban open space, does not deprive the developer of the reasonable value and all practical use of the property, and thus does not constitute a taking of land. Art. I, 19 of the N.C. Constitution; 14th Amendment to the U.S. Constitution. <block_quote> Am Jur 2d, Dedication 32; Zoning and Planning 106, 123, 163.</block_quote><page_number>Page 102</page_number> 5. Boundaries 10.2 (NCI3d); Evidence 32.7 (NCI3d) — subdivision covenants — meaning of "Common Areas" — latent ambiguity — parol evidence — preliminary and landscaping plats — statements by sales agents A description in a declaration of subdivision covenants of land to be conveyed to a homeowners' association as "Common Area" was latently ambiguous, and evidence of the preliminary plat and landscaping plan filed by the developer was admissible to identify the common area referred to in the declaration of covenants. Furthermore, evidence that sales agents used the preliminary and landscaping plats to illustrate the location of the common area was competent to show that those plats were documents intended by the parties to identify the boundaries and condition of the common area referred to in the covenants. Am Jur 2d, Boundaries 8, 76, 95, 96. 6. Parties 6 (NCI3d); Rules of Civil Procedure 24 (NCI3d) — proper but not necessary parties — denial of motion to intervene The trial court did not err in denying the motion of individual homeowners to intervene in an action to determine whether a subdivision developer was required to convey to a homeowners' association a three-acre parcel designated as a common area on the preliminary plat since the individual homeowners were proper but not necessary parties, and the homeowners' association adequately represented their interest in the action. N.C.G.S. <cross_reference>1A-1</cross_reference>, Rule 14. Am Jur 2d, Boundaries 8, 76, 95, 96. 7. Associations 5 (NCI3d); Rules of Civil Procedure 17 (NCI3d) — fraud and unfair trade practices — no standing by homeowners' association The trial court properly ruled that a homeowners' association did not have standing to prosecute on behalf of its members claims against a subdivision developer for fraud and unfair trade practices based on its failure to convey a common area to the association where it cannot be concluded that the damages claims are common to the entire membership of the association; it is unlikely that each association member shares the injury in equal degree; and permitting the association to pursue a<page_number>Page 103</page_number> claim for damages for fraud would deprive its members of the right to seek the alternative remedy of rescission of contract. Am Jur 2d, Associations and Clubs 54, 55. 8. Appeal and Error 2 (NCI3d) — theory not raised in trial court A theory of recovery not raised in the trial court will not be considered on appeal. Am Jur 2d, Appeal and Error 545.

1. Criminal Law 73.2 (NCI3d) — hearsay — statements against interest — admissible The trial court did not err in the prosecution of a cocaine dealer for murder by admitting various hearsay statements<page_number>Page 156</page_number> where the statements constituted statements against the penal interest of the declarants; the facts of the case and non-hearsay testimony substantiate the trustworthiness of the statements; and, additionally, repetition of those hearsay statements in open court was against the penal interest of the witnesses testifying. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 804 (b)(3). Am Jur 2d, Evidence 610. 2. Criminal Law 46.1 (NCI3d) — murder — flight — evidence sufficient to support instruction The evidence in a murder prosecution supported the trial court's instruction on defendant's flight where defendant attempted to conceal the victim's body; ordered an accomplice to wipe fingerprints off the murder weapon and then to throw it into a nearby river from which it was never recovered; defendant and the accomplice later tried to throw the victim's clothes and personal effects into a dumpster and, thwarted by the arrival of a passing police officer, eventually threw the items over the guardrail along a major highway; and defendant approached a fellow inmate and offered him money if the inmate would smuggle a gun to him so that he could escape. The question is not where or how defendant chose to live in the year between the victim's death and his arrest; rather the relevant inquiry concerns whether there is evidence that defendant left the scene of the murder and took steps to avoid apprehension, and evidence of defendant's attempt to escape provides additional support for the instruction. Am Jur 2d, Evidence 280, 623. 3. Criminal Law 89.3 (NCI3d) — murder — prior consistent statements — slight variation — admissible The trial court did not err in a murder prosecution by admitting testimony of an SBI agent concerning remarks made to him by a witness who was then a suspect where there were variations in the details present in the trial testimony and the prior statements. The statements were sufficiently consistent with and supportive of the trial testimony to be admissible as corroborative; slight variations in statements that do not go to the heart of the testimony will not preclude the admission of prior statements as corroborative. Am Jur 2d, Evidence 500.<page_number>Page 157</page_number> 4. Homicide 15 (NCI3d) — murder — possession of large number of firearms — relevant The trial court did not err in a murder prosecution by admitting testimony that defendant owned a double-barreled sawed-off shotgun and that more than twenty handguns, long guns, and shotguns, including a double-barreled sawed-off shotgun, were found at defendant's residence where the testimony regarding defendant's ownership of a double-barreled sawed-off shotgun was relevant to show defendant's violent lifestyle as well as his relationship with the witness and the victim; a large number of weapons and large quantities of ammunition found at defendant's residence were relevant inasmuch as those facts pointed out that defendant owned .380 caliber ammunition and that a .380 caliber weapon was not found at his residence, supporting the theory that defendant shot the victim with a .380 caliber gun and then threw the gun in a nearby river; and defendant raised the issue of his interest in guns under direct examination and thus waived his right to complain of the admission of related evidence by the State. Am Jur 2d, Evidence 288, 446. 5. Criminal Law 70 (NCI3d) — murder — tape recording — admissible The trial court did not err in the murder prosecution of a drug dealer by admitting into evidence testimony about a conversation another suspect had with defendant which led to defendant's arrest as well as a tape recording of the conversation and a transcript of the tape recording. The pre-arrest warrantless recording of defendant's incriminating statements did not violate defendant's right to be free of unreasonable search and seizure under article 1, section 20 of the North Carolina Constitution inasmuch as defendant had no legitimate expectation of privacy regarding a conversation he voluntarily maintained with a confederate; defendant's article 1, section 23 right to be free from compulsory self-incrimination was not violated because his participation in the conversation was wholly voluntary; defendant's right to counsel under article 1, section 23 was not violated because the conversation in question occurred during the initial investigation of the suspect prior to his arrest; and there was no merit to the contention<page_number>Page 158</page_number> that the recordings were improperly obtained or that their transcription or admission into evidence was in violation of <cross_reference>18 U.S.C. § 2510</cross_reference>-2518. Am Jur 2d, Evidence 436; Telecommunications 216.

1. Rules of Civil Procedure 12 (NCI3d) — motion to dismiss — failure to state claim for relief A complaint may be dismissed pursuant to Rule 12 (b)(6) if no law exists to support the claim made, if sufficient facts<page_number>Page 206</page_number> to make out a good claim are absent, or if facts are disclosed which will necessarily defeat the claim. Am Jur 2d, Pleading 226. 2. Statutes 5.1 (NCI3d) — statutory construction — intent of legislature Where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning. But where a statute is ambiguous, judicial construction must be used to ascertain the legislative will. Am Jur 2d, Statutes 145, 146, 194, 195. 3. Master and Servant 7.5 (NCI3d) — Handicapped Persons Act — inapplicability to person infected with AIDS virus A person who is infected with the AIDS virus (HIV), but who is otherwise asymptomatic, is not entitled to employment protection under the provisions of the N.C. Handicapped Persons Act because (1) a person infected with HIV is not a "handicapped person" within the meaning of the Act in that he does not have a physical or mental impairment which limits a "major life activity" as that term is defined by N.C.G.S. <cross_reference>168A-3</cross_reference> (4), nor is he regarded as having such an impairment; (2) the legislature did not intend that the definition of "handicapped person" would include a person solely because he suffers from a communicable disease since such an interpretation would render meaningless the communicable disease exemption of N.C.G.S. <cross_reference>168A-5</cross_reference> (b)(3); and (3) subsequent legislative history indicates that the legislature did not intend to cover the subject of communicable diseases such as HIV when it enacted the Handicapped Persons Act. Am Jur 2d, Job Discrimination 124.

Homicide 30 (NCI3d) — first degree murder — premeditation and deliberation — submission of second degree murder not required The evidence in a first degree murder case overwhelmingly supported the elements of premeditation and deliberation and did not require the trial court to instruct the jury on<page_number>Page 254</page_number> the lesser included offense of second degree murder where tended to show that defendant stated "Let's get mama" before going downstairs to initiate the fight which led to defendant suffocating her mother with a pillow; the fight was initiated by defendant when deceased was lying asleep on the couch; defendant planned to kill her mother two weeks prior to this occasion but "chickened out"; defendant placed different medications in her mother's beer and water in preparing to kill her; defendant specially prepared the pillow by wrapping it in plastic bags for the purpose of suffocating her mother; defendant killed her mother for money in that she knew her mother intended to remove her as the payee on her disability checks, and she called her grandmother to see if there were any insurance policies on the life of her mother; lethal blows were inflicted by defendant after the victim had been rendered helpless; and the victim suffered great psychological stress from "air hunger" and died a brutal death. The prior unsworn statement by a co-conspirator which was subsequently repudiated by her under oath at trial that the victim held a knife against defendant was insufficient to require an instruction on second degree murder. Am Jur 2d, Homicide 530.

1. Criminal Law 396 (NCI4th) — capital trial — court's comments on nature of charge — failure to mention lesser included offenses Where the trial court in a first degree murder case informed prospective jurors of the nature of the charge against defendant and outlined the procedures followed in a trial of a capital case, the court's failure to mention second degree murder as a possible verdict did not amount to an expression of opinion that second degree murder would not be a possible verdict. Am Jur 2d, Homicide 460, 469. 2. Criminal Law 34.4 (NCI3d) — evidence of other crimes — when admissible Evidence of other offenses is admissible so long as it is relevant to any fact or issue other than the character of the accused. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 404 (b). Am Jur 2d, Evidence 320, 321. 3. Criminal Law 34.1 (NCI3d) — evidence of other crimes — exception to admissibility Relevant evidence of other crimes, wrongs or acts by a defendant is admissible under Rule 404 (b) subject to an exception requiring its exclusion if its only probative value is to show that defendant has the propensity or disposition to commit an offense of the nature of the crime charged. Am Jur 2d, Evidence 320, 321. 4. Criminal Law 34.7 (NCI3d) — prior indecent act by defendant — admissibility to show motive In a prosecution of defendant for the murder of a ten-year-old girl, evidence that defendant admitted to the mother of a three-year-old girl and her minister that he masturbated in the presence of the three-year-old girl at a time prior to the death of the victim was admissible to support the State's theory of defendant's motive for the murder. Am Jur 2d, Evidence 324, 325.<page_number>Page 269</page_number> 5. Criminal Law 34.7 (NCI3d) — felony murder — prior indecent act by defendant — admissibility to show felonious intent for kidnapping In a prosecution of defendant for first degree murder of a ten-year-old girl allegedly committed after premeditation and deliberation and during the perpetration of the felony of kidnapping, evidence that defendant admitted to the mother of a three-year-old girl and her minister that he masturbated in the presence of the three-year-old girl at a time prior to the death of the victim was relevant and admissible to support the State's theory of kidnapping that defendant took the victim for the purpose of facilitating his commission of the felony of taking indecent liberties with a child. N.C.G.S. <cross_reference>14-39</cross_reference> (a). Am Jur 2d, Evidence 324, 325. 6. Criminal Law 34.7 (NCI3d) — admission of prior indecent act by defendant — exclusion of others — discretion under Rule 403 The trial court properly exercised its discretion under N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 403 in allowing testimony with regard to one prior incident in which defendant was alleged to have taken indecent liberties with a child and in excluding, as needlessly cumulative, testimony that defendant had taken indecent liberties with two other children. Am Jur 2d, Evidence 324, 325. 7. Criminal Law 73.2 (NCI3d) — statements of child — admission for limited purposes — not inadmissible hearsay A mother's testimony that her three-year-old daughter told her that defendant had masturbated in front of her was not inadmissible hearsay where it was admitted for the limited purpose of explaining the mother's subsequent conduct. Nor was testimony by the mother's pastor that the mother had told him about the child's statement concerning defendant inadmissible hearsay where it was admitted for the limited purpose of corroborating the prior testimony of the mother. Am Jur 2d, Evidence 500. 8. Homicide 21.6 (NCI3d) — felony murder — kidnapping — sufficiency of evidence The State's evidence was sufficient to support defendant's conviction of first degree murder of a ten-year-old girl under<page_number>Page 270</page_number> the theory that the murder was committed during the perpetration of the felony of kidnapping. Am Jur 2d, Homicide 72. 9. Criminal Law 627 (NCI4th); Homicide 21.5 (NCI3d) — first degree murder — identification evidence not inherently incredible The State's evidence was not inherently incredible so as to be insufficient to support defendant's conviction of first degree murder of a child under the theory of premeditation and deliberation because there was an extended period between the time the witnesses observed defendant with the victim at the crime scene and their identification at trial, or because the witnesses were very young and some of them viewed him at a distance, where each of the witnesses who positively identified defendant had the opportunity to observe him for varying lengths of time in full daylight at reasonably close range. Am Jur 2d, Homicide 435. 10. Constitutional Law 31 (NCI3d) — indigent defendant — sufficiency of funds allowed for textile science expert An indigent defendant was not denied the opportunity to rebut the State's evidence by the trial court's ruling allowing only $250 rather than the $500 requested for employment of a textile science expert where defense counsel indicated to the trial court at the hearing on defendant's motion that $250 would be a sufficient amount for retaining an expert in textile science for the purposes for which he sought the assistance of an expert; defendant's only specific assertion of the need for the expert was that such an expert "may well have testified that 90% of all vans and autos have factory installed carpets with fibers similar to those found on the victim," but defendant failed to suggest why the amount allowed by the trial court was insufficient to allow him to discover any such evidence and introduce it through an expert — and defendant thus failed to make the requisite showing of specific need for any more funds for the assistance of an expert in textile science than the trial court allowed for this purpose. Am Jur 2d, Criminal Law 955, 1006.<page_number>Page 271</page_number> 11. Criminal Law 73.3 (NCI3d) — intent to do future act — admissibility of victim's statements Testimony as to statements made by a child murder victim to two witnesses that she planned to go fishing with "a nice gray-haired man" on the day she disappeared was admissible under N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 803 (3) as evidence of the victim's mental or emotional condition at the time she made the statements. Am Jur 2d, Evidence 500. 12. Criminal Law 146.1 (NCI3d) — exclusion of evidence — absence of formal offer — question not presented on appeal Defendant's contention that the trial court improperly excluded evidence tending to show that another person committed the crime charged and that the trial court erred by preventing his making a proper record of the excluded evidence for purposes of appellate review was not before the appellate court for review where the record shows that defendant never actually attempted to introduce any evidence tending to show that another person committed the crime charged because of a conscious election against introducing evidence in order to retain his right to make the last closing argument to the jury. Am Jur 2d, Evidence 441; Trial 128-131. 13. Criminal Law 66.19 (NCI3d) — admissibility of identification testimony — pretrial hearing — exclusion of question about victim's clothing In a pretrial hearing on defendant's motion to suppress identification testimony in a murder trial, the trial court did not err in refusing to allow defendant to cross-examine an identification witness about the victim's clothing at the time he saw her with defendant since the court could properly limit defendant's cross-examination of the witness to issues concerning the reliability and admissibility of his identification of defendant. N.C.G.S. <cross_reference>15A-977</cross_reference> (a). Am Jur 2d, Evidence 278, 371, 371.8, 372, 373, 1143. 14. Criminal Law 66.18 (NCI3d) — identification testimony — suppression hearing — refusal to continue to obtain television tapes The trial court did not err in refusing to continue the voir dire hearing on the admissibility of identification testimony<page_number>Page 272</page_number> until television tapes could be secured and presented by defendant to the court after several witnesses testified that they had seen the television broadcasts showing defendant before they identified him where a full inquiry was made as to the reliability of each witness's identification of defendant; each witness who had seen the broadcasts gave some description of what they had seen and said that the broadcasts had not influenced their identification of defendant; and the evidence supported the trial court's findings and conclusions that each witness identified defendant based upon his or her independent recollection of seeing defendant with the victim and was free from any possible taint from the television broadcasts. Am Jur 2d, Evidence 278, 371, 371.8, 372, 373, 1143. 15. Criminal Law 89.3 (NCI3d) — prior statements of witnesses — corroboration Prior statements of three witnesses concerning their observation of the victim and defendant at a lake on the day the victim was killed did not conflict with their trial testimony and were properly admitted as corroborative of their trial testimony. Any new information contained in a witness's prior statement but not referred to in his or her trial testimony may be admitted as corroborative evidence if it tends to add weight or credibility to that testimony. Am Jur 2d, Evidence 278, 371, 371.8, 372, 373, 1143. 16. Criminal Law 461 (NCI4th) — prosecutor's jury argument — matters not in evidence — no gross impropriety In a prosecution of defendant for murder of a ten-year-old girl, inferences drawn by the prosecutor in his jury argument concerning a prior incident of indecent liberties with a three-year-old girl were supported by the evidence. Furthermore, assuming arguendo that the evidence and inferences drawn therefrom did not support the prosecutor's arguments that defendant did not seek counseling after being confronted about the prior incident, that only one witness viewed him on television prior to identifying him when three actually did so, and that a potential witness was not called because he could not refute the State's evidence, the statements were not so grossly<page_number>Page 273</page_number> improper that the trial court abused its discretion by failing to intervene ex mero motu. Am Jur 2d, Trial 251, 258-262. 17. Criminal Law 468 (NCI4th) — jury argument — God and providence — no gross impropriety The prosecutor's jury argument that it was "providential" that the police were able to turn up some of the evidence which they collected was used and understood as meaning "fortuitous" and was not improper. Furthermore, the prosecutor's remarks about God were not so grossly improper that the trial court abused its discretion by failing to intervene. Am Jur 2d, Trial 251, 258-262. 18. Criminal Law 1324 (NCI4th) — capital case — death penalty — writing signed by jury foreman — necessity for finding of insufficiency of mitigating circumstances The jury in a first degree murder case was erroneously permitted to recommend a sentence of death without returning a writing signed by the foreman on behalf of the jury showing, inter alia, that the mitigating circumstances were insufficient to outweigh the aggravating circumstances found as required by N.C.G.S. <cross_reference>15A-2000</cross_reference> (c)(3). Therefore, the sentence of death is vacated and the case is remanded for a new sentencing hearing even though the trial court gave correct oral instructions to the jury concerning the order and form of the issues the jury must answer in determining whether to recommend a sentence of death or life imprisonment. Am Jur 2d, Homicide 541, 542, 546.

1. Appeal and Error 6.2 (NCI3d) — malpractice — contact with nonparty treating physicians — remedial order — appealable Although defendant's appeal was interlocutory, the Supreme Court elected to hear the matter on the merits under the authority of North Carolina Constitution, article IV, 12 (1), because of the importance of the question presented. Am Jur 2d, Appeal and Error 50, 53, 55, 62.<page_number>Page 327</page_number> 2. Evidence 14 (NCI3d) — malpractice action — ex parte interview with nonparty treating physician Assuming that the plaintiff in a medical malpractice action impliedly waived her physician-patient privilege by her pretrial conduct, the trial court correctly found that defense counsel acted improperly by privately contacting and discussing plaintiff's medical care and treatment with plaintiff's nonparty treating physicians. Considerations of patient privacy, the adequacy of formal discovery devices, and the untenable position in which ex parte contact places the nonparty physician supersede defendant's interest in a less expensive and more convenient method of discovery. Defense counsel may not interview plaintiff's nonparty treating physicians privately without plaintiff's express consent; defendant must instead utilize the statutorily recognized methods of discovery enumerated in N.C.G.S. <cross_reference>1A-1</cross_reference>, Rule 26. <block_quote> Am Jur 2d, Depositions and Discovery 29, 70, 132; Witnesses 233.</block_quote> 3. Trial 9 (NCI3d); Rules of Civil Procedure 26 (NCI3d) — medical malpractice action — ex parte interview with nonparty treating physician — remedial order — within the authority of the court The trial court did not err in a medical malpractice action by requiring defense counsel to fully disclose the substance of all private conversations between defense counsel and plaintiff's nonparty treating physicians even though defendant contended that this forced him to reveal his work product. The order was remedial in purpose and effect and within the broad inherent, discretionary power of the trial court to control the course of a trial so as to prevent injustice to a party. <block_quote> Am Jur 2d, Depositions and Discovery 29, 70, 132; Witnesses 233.</block_quote>

1. Appeal and Error 6.3 (NCI3d) — absence of subject matter jurisdiction — ruling appealable An order issued by a trial court holding that an administrative agency does not have subject matter jurisdiction over the issues on appeal is immediately appealable under N.C.G.S. <cross_reference>1-277</cross_reference> (a) because it determines or discontinues the action. <block_quote> Am Jur 2d, Administrative Law 646; Appeal and Error 87.</block_quote> 2. State 12 (NCI3d) — state employee grievance — jurisdiction of State Personnel Commission and Office of Administrative Hearings — applicable statute Among all of the provisions of Article 8 of the State Personnel Act, only section <cross_reference>126-37</cross_reference> confers upon the State Personnel Commission or upon the Office of Administrative Hearings the jurisdiction, or power, to deal with a state employee grievance based on a reduction in position prompted by managerial reallocation of personnel. Insofar as Poret v. State Personnel Comm., <cross_reference>74 N.C. App. 536</cross_reference> (1985) and N.C. Dept. of Justice v. Eaker, <cross_reference>90 N.C. App. 30</cross_reference> (1988) hold otherwise, they are overruled. <block_quote> Am Jur 2d, Administrative Law 203; Civil Service 72, 74.</block_quote><page_number>Page 339</page_number> 3. State 12 (NCI3d) — grievance of Department of Correction employee — no exemption under Administrative Procedure Act The exemption of the Department of Correction from the Administrative Procedure Act, G.S. Ch. 150B, does not apply to a Department of Correction employee whose job classification is not one of those exempted from grievance review and appeal under the State Personnel Act, G.S. Ch. 126. Therefore, petitioner, a permanent employee in a non-policymaking, nonacademic position in the Department of Correction, was not barred from the appeal procedures of the Administrative Procedure Act by that Act's general exclusion of his department from its provisions. <block_quote> Am Jur 2d, Administrative Law 203; Civil Service 72, 74.</block_quote> 4. State 12 (NCI3d) — state employee — demotion without sufficient cause — contested case — appeal conducted by Office of Administrative Hearings An allegation that a permanent state employee was "demoted in rank without sufficient cause" stated grounds for his department's action to be deemed "disciplinary" within the meaning of N.C.G.S. <cross_reference>126-35</cross_reference>, even though his reduction in position was prompted by managerial reallocation of personnel rather than by employee misconduct, and presented a "contested case" within the meaning of N.C.G.S. <cross_reference>126-37</cross_reference> (a). Therefore, plaintiff's grievance invoked first the jurisdiction of the State Personnel Commission and, on appeal, that of the Office of Administrative Hearings. <block_quote> Am Jur 2d, Administrative Law 203; Civil Service 72, 74.</block_quote>

1. Jury 6.3 (NCI3d) — first degree murder — jury selection — questions concerning racism in criminal justice system The trial court did not err in a murder prosecution in Robeson County by permitting the prosecutor to question Indian prospective jurors regarding their perceptions of racism in the criminal justice system. The State as well as defendant is entitled to a fair trial, the case was tried at a time when racial tensions in Robeson County were particularly high, and the challenged line of questions was a permissible effort to determine whether prospective jurors' perceptions of the trial process would affect their ability to render a fair verdict. Am Jur 2d, Jury 202. 2. Jury 7.14 (NCI3d) — first degree murder — jury selection — peremptory challenges — racial discrimination Under Batson v. Kentucky, <cross_reference>476 U.S. 79</cross_reference>, a defendant makes a prima facie case of purposeful discrimination in the selection of the petit jury if he shows that he is a member of a cognizable racial minority; members of his racial group have been peremptorily excused; and racial discrimination appears to have been the motivation for the challenges. When defendant makes out a prima facie case, the burden of production shifts to the State to come forward with a neutral explanation for each peremptory strike, and defendant has the right of surrebuttal to show that the prosecutor's explanations are a pretext. Factors to which the court should refer in assessing whether the articulated reasons are legitimate or a pretext include the susceptibility of the particular case to racial discrimination, the prosecutor's demeanor, and the explanation itself. Am Jur 2d, Jury 233. 3. Jury 7.14 (NCI3d) — first degree murder — jury selection — peremptory challenges — not racial The prosecutor did not impermissibly exercise peremptory challenges on the basis of race where the prosecutor waived argument as to whether a prima facie case existed;<page_number>Page 490</page_number> the trial court properly required the prosecutor to explain his use of peremptory challenges given the prosecutor's waiver and the State's use of ten of thirteen peremptory challenges against Indian prospective jurors; and the prosecutor gave an individual explanation for each peremptory challenge of an Indian venireperson. It is relevant but not dispositive that the impaneled jury consisted of four Indians, four Blacks, and four Whites, mirroring exactly the racial composition of Robeson County; the victim, both defense counsel, and defendant were Indian; defense counsel peremptorily challenged two Indian prospective jurors; and defendant at trial made no attempt to show that the prosecutor's explanations were merely pretextual. Any disparate treatment which may have occurred was not the result of racial and discriminatory motivation; choosing jurors involves a complex weighing of factors in which a single factor rarely controls the decision-making process. Specific findings of fact supporting the conclusion that no discriminatory purpose was involved are not necessary where there was no material conflict in the evidence. Am Jur 2d, Jury 233. 4. Constitutional Law 32 (NCI3d) — murder — jury selection — ejection from gallery The trial court did not violate defendant's right to a public trial under the North Carolina Constitution by ejecting a prospective juror from the gallery where that person had remained in the courtroom gallery after being excused and advised at least one prospective juror on the meaning of aggravating and mitigating circumstances. North Carolina Constitution, art. I, 18. Am Jur 2d, Trial 33. 5. Jury 6.3 (NCI3d); Criminal Law 411 (NCI4th) — first degree murder — jury selection — statement that death penalty central issue — no error There was no error in a first degree murder prosecution where the prosecutor repeatedly stated during jury selection that the death penalty was the central question. The prosecutor did not interject an opinion but merely stated what the jury already knew. Am Jur 2d, Jury 289, 290.<page_number>Page 491</page_number> 6. Jury 6.4 (NCI3d) — first degree murder — jury selection — questions concerning death penalty There was no error in a first degree murder prosecution where the prosecutor asked each juror prior to impaneling whether they could be a part of the legal machinery which might bring about the death penalty. The prosecutor's question emphasized each juror's present participation in the decision-making process and was not made to badger or intimidate, but to determine whether the jurors could comply with the law. Am Jur 2d, Jury 289, 290. 7. Criminal Law 415, 728 (NCI4th) — first degree murder — consideration of second degree murder Although defendant in a first degree murder prosecution contended that the cumulative effect of a statement during the prosecutor's closing argument, a sustained objection to the defendant's closing argument, and an unobjected to instruction on second degree murder effectively excluded second degree murder from the consideration of the jury, there was no error in whole or in part. The prosecutor's closing argument was specifically advocating a decision based on the evidence, the trial judge properly prohibited that part of defendant's argument which referred to what the trial judge believed, and no expression of opinion by the trial judge arises merely from the comparative amount of time devoted to giving an instruction. Am Jur 2d, Homicide 463, 529, 530. 8. Homicide 24.1 (NCI3d) — first degree murder — deadly weapon — instruction on malice The trial judge did not commit plain error in its instruction on malice in a first degree murder prosecution where the court stated that malice was implied from a killing with a deadly weapon and peremptorily instructed the jury that a .25-caliber gun is a deadly weapon where there was no evidence of provocation on the part of the victim. All killings accomplished through the intentional use of a deadly weapon are deemed to be malicious and unlawful absent evidence of mitigating or justifying factors, and the instruction did not relieve the State of its burden of proof. Am Jur 2d, Homicide 500, 501.<page_number>Page 492</page_number> 9. Homicide 25.2 (NCI3d) — first degree murder — instructions — malice as evidence of premeditation and deliberation There was no plain error in a first degree murder prosecution from the court's instruction that the jury could consider evidence relating to expressed malice as evidence tending to show premeditation and deliberation. Although defendant argued that the jury could have convicted defendant of first degree murder without ever having found the separate elements of premeditation and deliberation, the judge had stated that threats, the manner of killing, and defendant's declarations were proper for the jury's consideration of premeditation and deliberation. Furthermore, there was no error in permitting the jury to consider evidence of defendant's conduct after the killing. Am Jur 2d, Homicide 500, 501. 10. Homicide 26 (NCI3d) — first degree murder — instructions — provocation The trial court did not improperly instruct the jury on provocation in a first degree murder prosecution. Even if verbal abuse or suspicions of adultery can negate deliberation and reduce first degree murder to second degree murder, mere jealousy, without more, cannot be sufficient to negate deliberation. Am Jur 2d, Homicide 53. 11. Criminal Law 463, 465 (NCI4th) — first degree murder — prosecutor's argument There was no prejudicial error in a prosecutor's descriptions of the elements of premeditation and deliberation in a first degree murder prosecution where the prosecutor stated that deliberation meant a cold-blooded murder and that it did not include the case where a man comes home and "finds his wife shacked up there with somebody." Such an example offered for the sake of comparison was not so grossly improper as to require the trial court to intervene ex mero motu. Moreover, the prosecutor's argument that defendant's statement that he had meant to kill the victim, made after shooting her three times, was evidence of premeditation and deliberation was a correct statement of the law. Am Jur 2d, Homicide 463.<page_number>Page 493</page_number> 12. Criminal Law 442 (NCI4th) — first degree murder — prosecutor's argument — jury as body of society There was no prejudicial error in a first degree murder prosecution from the prosecutor's argument that the jury was the body of society where the evidence of defendant's guilt was overwhelming. Am Jur 2d, Homicide 463. 13. Criminal Law 1312 (NCI4th) — first degree murder — sentencing — evidence of other crimes The trial court erred in a first degree murder prosecution by allowing the State to cross-examine defendant about prior convictions more than ten years old. The convictions were not admissible for the purpose of establishing the aggravating factors set out in N.C.G.S. <cross_reference>15A-2000</cross_reference> (e)(3) because it was not clear which of the convictions, if any, involved the threat or use of violence and there was no doubt that three and arguably five of the convictions did not involve the threat or use of violence. Moreover, the State concedes that the record does not indicate that the prosecutor gave the required notice and there was no indication that the judge indulged in the weighing process required by N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 609. There was prejudice because three of the convictions occurred prior to Gideon v. Wainwright, <cross_reference>372 U.S. 335</cross_reference>, and defendant may have been convicted without the assistance of counsel, and defendant's criminal record assured the jury that defendant was not capable of rehabilitation and was thus a fitting subject of the death penalty. Am Jur 2d, Criminal Law 599. 14. Criminal Law 1362 (NCI4th) — first degree murder — sentencing — age of defendant as mitigating circumstance — not submitted The evidence did not support submitting defendant's age of sixty-one years as a mitigating circumstance during sentencing for first degree murder where defendant's chronological age of sixty-one and borderline I.Q. of seventy-one were balanced against defendant's youthful interest in the victim, his vigorous responses to the prosecutor's cross-examination, and his physical prowess in his attempts to escape. Am Jur 2d, Criminal Law 598, 599; Homicide 554, 555.<page_number>Page 494</page_number>

1. Criminal Law 34.10 (NCI3d) — possession of LSD — evidence of concurrent possession of marijuana — relevant Concurrent misdemeanor possession of marijuana was admissible in a prosecution for felonious possession of LSD under N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 401 where the arresting officer initially stopped defendant's vehicle because he suspected defendant<page_number>Page 543</page_number> was driving while intoxicated; defendant made a threatening remark as the officer approached defendant's vehicle; this remark prompted the officer to call for assistance; the officer searched defendant's person for weapons when his backup arrived; and, after finding a bag of marijuana in defendant's pocket, the officer proceeded to search defendant's vehicle, discovering the LSD. The "chain of circumstances" rationale established in our pre-Rules cases survives the adoption of the Rules of Evidence; here, the discovery of marijuana on defendant's person constituted an event in the officer's narrative which naturally led to the search of defendant's vehicle and the subsequent detection of the LSD. Am Jur 2d, Evidence 321, 323-327. 2. Criminal Law 34.10 (NCI3d) — felonious possession of LSD — concurrent possession of marijuana — not excludable under Rule 404(b) Evidence of concurrent misdemeanor possession of marijuana was not required to be excluded under N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 404 (b) in a prosecution for felonious possession of LSD where the evidence of defendant's marijuana possession served the purpose of establishing the chain of circumstances leading up to his arrest for possession of LSD, and was not probative only of defendant's propensity to possess illegal drugs. It was noted that N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 404 (b) is a rule of inclusion, subject to the weighing of probative value versus unfair prejudice. Am Jur 2d, Evidence 321, 323-327. 3. Criminal Law 34.10 (NCI3d) — felonious possession of LSD — concurrent possession of marijuana — admission not abuse of discretion The trial court did not abuse its discretion in a prosecution for felonious possession of LSD by admitting evidence of defendant's concurrent misdemeanor marijuana possession, even though defendant contended the evidence should have been excluded under N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 403 because its probative value was substantially outweighed by the danger of unfair prejudice. Am Jur 2d, Evidence 321, 323-327.<page_number>Page 544</page_number> 4. Constitutional Law 34 (NCI3d) — felonious possession of LSD — concurrent possession of marijuana — double jeopardy collateral estoppel Evidence of concurrent misdemeanor marijuana possession was not constitutionally inadmissible in a prosecution for felonious possession of LSD under the collateral estoppel doctrine of the Fifth Amendment where defendant had been previously acquitted of the marijuana charge. The U.S. Supreme Court opinion in Dowling v. United States, 493 U.S. — -, directly controls this issue; evidence that the defendant committed the prior offense was admissible because of the different burdens of proof applicable to the two trials. Am Jur 2d, Evidence 332.

1. Criminal Law 904 (NCI4th); Rape and Allied Offenses 19 (NCI3d) — indecent liberties — disjunctive instruction — unanimity of verdict The trial court's instruction that an indecent liberty is an immoral, improper or indecent touching or act by defendant upon the child or an inducement by defendant of an immoral or indecent touching by the child did not violate defendant's right to a unanimous verdict since the crime of indecent liberties is a single offense which may be proved by evidence of the commission of any one of a number of acts, and the requirement of unanimity is met even if some jurors find that one type of sexual conduct occurred and others find that another transpired. Am Jur 2d, Trial 884.<page_number>Page 562</page_number> 2. Criminal Law 1186 (NCI4th) — aggravating factors — prior convictions — nexus to present crime not required The trial court did not err in utilizing defendant's prior unrelated convictions for the sale and delivery of drugs as aggravating factors for his current convictions for taking indecent liberties since the legislature has mandated in N.C.G.S. 15A-1340.4 (a)(1)o that prior convictions punishable by more than sixty days' confinement shall be treated as aggravating factors without regard to whether the prior crimes are related to the purposes of sentencing for the present crime. Am Jur 2d, Criminal Law 599.

Attorneys at Law 55 (NCI4th); Judgments 16 (NCI3d) — wrongful death action — attorney fees — collateral attack on judgment The trial court erred by granting summary judgment for defendants on the grounds of collateral estoppel in an action<page_number>Page 570</page_number> in which plaintiffs alleged breach of fiduciary duty, intentional disregard of duty, conspiracy and negligence by her attorneys in settling a wrongful death action but did not seek to set aside the order approving the settlement or a refund of the attorney fees paid pursuant thereto. Collateral estoppel does not apply because the focus in the prior case was not whether the attorneys had taken advantage of their client but whether the settlement reached was fair to the minors involved; this is not a proceeding to set aside or reopen the order approving the settlement but instead to recover damages based upon a breach of fiduciary duty on the part of her attorneys in obtaining it. Am Jur 2d, Attorneys at Law 206; Judgments 572.

1. Criminal Law 904 (NCI4th); Rape and Allied Offenses 6, 19 (NCI3d) — disjunctive instructions — unanimity of verdict Defendant's right to a unanimous verdict was not violated by the trial court's instruction that the jury could convict defendant of first degree sexual offense if it found that defendant engaged in either fellatio or vaginal penetration or by the instruction that an indecent liberty is an immoral or indecent touching by the defendant or an inducement by the defendant of an immoral or indecent touching by the child. Am Jur 2d, Rape 108. 2. Criminal Law 34.8 (NCI3d); Rape and Allied Offenses 4.1 (NCI3d) — sexual offenses against daughter — molestation of stepdaughter — admissibility to show common scheme In a prosecution of defendant for various sexual offenses against his twelve-year-old daughter, testimony by defendant's stepdaughter that defendant had molested her from the time she was nine years old until she was eighteen years old was admissible to show a common scheme or plan by defendant to molest his stepdaughter and daughter. Am Jur 2d, Rape 70-75. 3. Rape and Allied Offenses 4.1 (NCI3d) — prior sexual misconduct — unnatural lust by defendant — limiting instruction — no plain error In a prosecution of defendant for rape, sexual offense, incest and indecent liberties involving his twelve-year-old daughter, the trial court's limiting instruction that the jury should consider testimony by the victim's sister concerning defendant's prior sexual misconduct toward her to determine whether there was unnatural lust in the mind of defendant did not constitute plain error since it did not render the trial fundamentally unfair and did not have a probable impact on the jury's verdict finding the defendant guilty. Am Jur 2d, Rape 70-75.<page_number>Page 783</page_number> 4. Rape and Allied Offenses 4.1 (NCI3d) — prior sexual misconduct — admission not violation of due process The admission of testimony by the victim's sister as to defendant's prior sexual misconduct upon her did not violate defendant's right to due process since there was no showing that defendant did not have adequate notice to meet this evidence, the instruction did not render the trial fundamentally unfair, and the testimony was strong evidence and had a rational connection with the crimes for which defendant was charged. Am Jur 2d, Rape 70-75.

Jury 5 (NCI3d); Constitutional Law 66 (NCI3d) — murder — jury selection — presence of defendant The trial court erred in a murder prosecution by excusing prospective jurors as a result of private unrecorded bench conferences with those jurors. The confrontation clause of the Constitution of North Carolina guarantees the right of the defendant to be present at every stage of the trial and it was error for the trial court to exclude the defendant, counsel, and the court reporter from its private communications with the prospective jurors at the bench prior to excusing them. It could not be determined from the record whether the error was harmless beyond a reasonable doubt because no record of the trial court's private discussions with the prospective jurors exists. N.C. Const. Art. I, 23. Am Jur 2d, Criminal Law 913; Jury 190.