Volume 327 — North Carolina Reports

1. Jury 6.2 (NCI3d) — murder — jury selection — objection to form of question There was no prejudice or abuse of discretion during jury selection in a murder prosecution where the trial court sustained an objection to defendant's question to venirepersons as to whether they were comfortable with the fact that it might be necessary for him to question police procedure, but the objection was sustained to the form of the question and defendant soon asked the same question in slightly different form. Am Jur 2d, Jury 136 et seq. 2. Jury 7.11 (NCI3d) — murder — jury selection — feelings about death penalty — excusal for cause There was no error during jury selection for a murder prosecution in the excusal of six prospective jurors for cause due to their feelings about the death penalty where the prospective jurors all agreed that they would automatically vote<page_number>Page 2</page_number> against the imposition of the death penalty regardless of the circumstances, all of the prospective jurors declared their position unequivocally and defendant made no showing that rehabilitative questioning would have elicited different answers. Am Jur 2d, Jury 165, 202, 289. 3. Criminal Law 1318 (NCI4th) — murder — jury selection — requested instruction on bifurcated procedure — denied There was no abuse of discretion during jury selection in a murder prosecution from the trial court's refusal to give a requested preliminary instruction regarding the bifurcated procedures in capital trials where the court chose instead to give the pattern jury instruction for that situation. Am Jur 2d, Trial 601. 4. Jury 6 (NCI3d) — murder — jury selection — individual voir dire and sequestration denied — no error There was no error in a murder prosecution in denying defendant's motion for individual voir dire and sequestration of jurors. Am Jur 2d, Jury 196, 197. 5. Criminal Law 162 (NCI3d) — murder — cross-examination about rumors — objection to relevancy properly denied — no further objection There was no error in a murder prosecution in allowing the prosecutor to cross-examine a defense witness with regard to rumors concerning defendant's guilt where defendant objected only once, that objection was based on relevancy, the evidence was clearly relevant because it related to a matter elicited on direct examination, no objection was made on hearsay grounds, and similar evidence was later admitted without objection. Am Jur 2d, Witnesses 492. 6. Criminal Law 460 (NCI4th) — murder — prosecutor's argument — inferences arising from rumor The trial court did not err in a murder prosecution by allowing the prosecutor to argue inferences arising from testimony about rumors in the community where the testimony was elicited by defendant on direct examination and defendant<page_number>Page 3</page_number> neither raised an objection on hearsay grounds at trial nor asked for an instruction limiting the jury's consideration of the evidence to impeachment purposes. The prosecutor's remarks were based upon facts in evidence and the reasonable inferences to be drawn therefrom. Am Jur 2d, Trial 218 et seq. 7. Criminal Law 468 (NCI4th) — murder — prosecutor's arguments There was no gross error requiring that a guilty verdict be set aside in a murder prosecution where the prosecutor implied during his closing argument that defense counsel was attempting to obscure the truth from the jury, that an accomplice who had testified for the State had not gained an untoward advantage by virtue of his plea arrangement, that the accomplice had been terrorized prior to trial even though there was no evidence in the record to that effect, and that defendant's alibi witnesses had motives to lie to protect him. Am Jur 2d, Trial 218 et seq. 8. Criminal Law 82.1 (NCI3d); Constitutional Law 40 (NCI3d) — statements overheard at jailhouse telephone — admissible There was no error in a murder prosecution from admitting an SBI agent's statement concerning defendant's telephone call from jail because defendant's statement was not made to his attorney, the statement was not made in confidence in that defendant spoke in the presence of the agent from a telephone located by the elevator inside the county jail, and defendant's constitutional right to counsel was not implicated. Am Jur 2d, Homicide 337 et seq. 9. Homicide 25 (NCI3d) — murder — instruction on intent to kill omitted — no error There was no plain error in a first degree murder prosecution from the omission of the portion of the pattern jury instruction which states that defendant formed the intent to kill over some period of time, however short, before he acted where the defense was total innocence, as presented by several alibi witnesses, and not that defendant shot the victim in an unpremeditated manner. The evidence presented no issue as to defendant's state of mind or the existence of a calculated<page_number>Page 4</page_number> plan to kill the victim, but called for a determination of the credibility of the witnesses. The jury's verdict of guilty of first degree murder and conspiracy to murder demonstrates its belief that the State's witness testified truthfully regarding the existence of a premeditated plan to kill the victim; additional instructions on the element of premeditation would have had no effect on the verdict. Am Jur 2d, Homicide 501. 10. Homicide 23.1, 25.2 (NCI3d) — murder — instructions — proximate cause and premeditation and deliberation — no error There was no plain error in a murder prosecution in the court's instruction on proximate cause and premeditation and deliberation as distinguished between the acts of defendant and those of an accomplice where the jury charge, when viewed as a whole, was replete with instructions directing the jury's consideration to defendant's acts alone. Am Jur 2d, Homicide 501. 11. Criminal Law 793 (NCI4th) — murder — failure to give acting in concert instruction — no error There was no error in a murder prosecution from the trial court's failure to instruct on acting in concert even though the prosecutor argued acting in concert to the jury because the absence of an acting in concert instruction could only have benefitted defendant. Am Jur 2d, Homicide 482, 496. 12. Criminal Law 959 (NCI4th) — murder — recanted testimony — motion for appropriate relief denied The trial court did not err in a murder prosecution by denying defendant's motion for appropriate relief on the basis of recanted testimony where the trial court concluded that it was not reasonably well satisfied that the trial testimony was false; the evidence did not compel a ruling in defendant's favor; the evidence supported the trial court's finding that the events which led to the State's witness's inconsistent statements and trial testimony were in substance before the jury which returned the guilty verdict; defendant's argument that the jury's belief of the trial testimony was irrelevant was rejected in the context of this case; and the findings of<page_number>Page 5</page_number> fact upon which the denial of the motion for appropriate relief was based were supported by the evidence. Am Jur 2d, Homicide 558. 13. Criminal Law 959 (NCI4th) — murder — motion for appropriate relief — withheld statements — denied The trial court did not err in a murder prosecution by denying defendant's motion to amend his motion for appropriate relief to assert as an additional ground the State's alleged withholding from defense counsel of statements by a witness where the proffered evidence bore remotely, if at all, on defendant's guilt. Moreover, the statements were admitted at the post-conviction hearing so that the judge could consider how the statements reflected on the recanted testimony issue, precisely the relief sought by defendant. Am Jur 2d, Homicide 558. 14. Criminal Law 951 (NCI4th) — murder — motion for appropriate relief — introduction of letter by witness — no error There was no prejudice in a motion for appropriate relief following a murder conviction in allowing cross-examination of a State's witness regarding a letter allegedly written by the witness admitting guilt where the court stated in its order denying the motion that it had not considered any evidence elicited by the State about the letter. Am Jur 2d, Homicide 558. 15. Criminal Law 1352 (NCI4th) — murder — sentencing — mitigating circumstance — unanimity requirement A death sentence was set aside and remanded for a new hearing under the McKoy harmless error analysis where there was evidence to support at least some of the mitigating circumstances submitted, yet the jury found none of the circumstances. Am Jur 2d, Criminal Law 628.

1. Searches and Seizures 19 (NCI3d) — defendant indicted for felonies — authority of deputy clerk to issue search warrant The titles to N.C.G.S. <cross_reference>7A-180</cross_reference> and -181 referring to the functions of clerks of superior court and assistant and deputy clerks "in district court matters" were not intended by the legislature to limit the authority of superior court clerks to issue search warrants within their operative counties exclusively to criminal matters to be tried in the district court. Therefore, a deputy clerk of superior court had jurisdiction to issue a search warrant to obtain samples of defendant's blood for laboratory analysis after defendant had been indicted for felonies which would be tried in the superior court. Am Jur 2d, Searches and Seizures 71, 105. 2. Criminal Law 50 (NCI3d) — new scientific method of proof — reliability A new scientific method of proof is admissible at trial if the method is sufficiently reliable. Am Jur 2d, Evidence 818. 3. Criminal Law 50 (NCI3d) — reliability of scientific procedure Reliability of a scientific procedure is usually established by expert testimony, and the acceptance of experts within the field is one index, though not the exclusive index, of reliability. Indices of reliability include the expert's use of established techniques, the expert's professional background in the field, the use of visual aids for the jury so that the jury is not asked to sacrifice its independence by accepting the scientific hypotheses on faith, and independent research conducted by the expert. Am Jur 2d, Evidence 822. 4. Criminal Law 55.1 (NCI3d) — admissibility of DNA profiling tests Expert testimony established the reliability of DNA profiling tests conducted by a commercial clinical laboratory so<page_number>Page 90</page_number> that results of the profiling tests, which compared DNA molecules extracted from defendant's blood with DNA molecules extracted from a stain on a bedspread taken from the crime scene, were admissible in this prosecution for first degree rape, first degree sexual offense, and other crimes. Am Jur 2d, Evidence 829, 1104, 1147.

1. Homicide 21.4 (NCI3d) — first degree murder — defendant as perpetrator — sufficiency of evidence Evidence that the first degree murder charged in the bill of indictment was committed and that defendant was the perpetrator was sufficient to be submitted to the jury where it tended to show that the victim's body was found at the edge of a path in a field "many weeks" after she died; her tank top was riddled with holes; defendant had the motive and opportunity to kill deceased, as she had allegedly stolen cocaine from him, making him angry, and the victim was last seen alive as she rode off with defendant in his car; defendant sold his car because he knew police would be looking for him<page_number>Page 163</page_number> in that vehicle; he escaped to Daytona Beach, Florida; defendant told the victim's mother when he telephoned her that he would not be put on hold because he thought the phone was bugged or tapped and he wanted the mother to get the police off his back; and defendant boasted to a fellow inmate that he had killed a girl because she owed him money, had been questioned about it, and had gotten away with it. Am Jur 2d, Evidence 1124 et seq. 2. Homicide 21.5 (NCI3d) — body with marks of violence — inculpatory statements to cell mate — sufficiency of evidence of first degree murder When a body is found with marks of violence upon it, such evidence establishes corpus delicti, and evidence of corpus delicti coupled with the testimony of a cell mate relating inculpatory statements made by defendant is sufficient to support a conviction. Am Jur 2d, Evidence 1141, 1142. 3. Homicide 17.2 (NCI3d) — first degree murder — threats made prior to victim's disappearance — no class threat — admission of evidence prejudicial error The trial court in a first degree murder case committed prejudicial error in permitting a witness for the State to testify about threats made by defendant against an unidentified woman approximately three weeks before the victim's disappearance, since defendant's threat that he was going to kill a woman who stole cocaine from him was in no way tied to the victim in that the evidence showed that the victim stole cocaine from defendant only on 17 June, the morning she disappeared, while defendant made the threat to kill the girl three weeks before; furthermore, the threat in question was not admissible as a class threat because it was directed against a specific person. Am Jur 2d, Evidence 272, 363.

1. Searches and Seizures 2 (NCI3d) — search and seizure by civilian — items seized inadmissible The trial court did not err in a prosecution for first degree murder and first degree rape by denying defendant's motion to suppress a ring and watch taken from the victim's residence and seized from defendant's bedroom by a civilian, Curtis Gardin. While Gardin's actions were based on information shared with him by government investigators and furthered their efforts, Gardin's primary purposes were to console the grieving family which he had known a long time and to alleviate tensions the murder had caused in the community. Furthermore, defendant failed to show that Gardin was acting as an agent for the State when he searched defendant's bedroom and seized the watch and ring. Am Jur 2d, Searches and Seizures 13, 14. 2. Constitutional Law 28 (NCI3d) — false and misleading testimony from deputy — defendant not deprived of fair trial Defendant was not deprived of his right to a fair trial by false and misleading testimony from a deputy where defendant failed to establish either that the testimony was material or that the prosecution knew it was false and intentionally used it to defendant's prejudice. Am Jur 2d, Criminal Law 829.<page_number>Page 320</page_number> 3. Searches and Seizures 19 (NCI3d) — evidence seized pursuant to flawed warrant — admission not prejudicial There was no prejudicial error in a prosecution for first degree rape and first degree murder in the admission of evidence seized pursuant to a flawed search warrant where the evidence had minimal probative value and little prejudicial impact, and in light of the overwhelming admissible evidence of defendant's guilt. Am Jur 2d, Evidence 408. 4. Criminal Law 75 (NCI3d) — confession — invalid search — subsequent arrest proper — confession admissible The trial court did not err in a prosecution for first degree murder and first degree rape by admitting defendant's confession where defendant's arrest was proper despite an invalid search preceding the arrest because other information lawfully obtained independently of information obtained in the invalid search provided probable cause for defendant's arrest. Defendant's confession was not obtained by trickery, duress, or in violation of his right to counsel because defendant's arrest and a private citizen's seizure of a watch and ring taken from the victim were valid and there was therefore no unconstitutional activity to taint the confession. Defendant's contention of duress was meritless in that it was based on the fact that law enforcement officers confronted the defendant during questioning with a watch and ring lawfully obtained. Am Jur 2d, Evidence 546. 5. Witnesses 1.4 (NCI3d); Criminal Law 361 (NCI4th) — master witness list — name omitted — not allowed to testify The trial court did not abuse its discretion in a prosecution for first degree rape and first degree murder by refusing to allow the testimony of a witness who would have been defendant's fifth alibi witness and whom defendant had failed to include on a master list of all potential witnesses. Defendant received explicit instructions that only those names submitted on the master list would be allowed to testify, defendant stated before trial that the list was complete, did not explain why he omitted the witness's name, expressed no special circumstances or need for the testimony, and the testimony would have been cumulative.<page_number>Page 321</page_number> Am Jur 2d, Witnesses 74. 6. Criminal Law 443 (NCI4th) — prosecutor's closing argument — prosecutor's duty — not improper A prosecutor's argument in a prosecution for first degree rape and first degree murder that he had taken an oath to fairly enforce the criminal laws and would dismiss a prosecution if he suspected anything wrong in the investigation was made in response to defendant's allegation of a "setup" and was not so grossly improper as to require the trial court to intervene ex mero motu. Am Jur 2d, Trial 218, 274. 7. Criminal Law 1352 (NCI4th) — murder — sentencing — unanimity requirement — new sentencing hearing A defendant found guilty of murder and sentenced under instructions containing unanimity requirements ruled unconstitutional in McKoy v. North Carolina, <cross_reference>108 L.Ed.2d 369</cross_reference>, was entitled to a new sentencing hearing where there was prejudice in that there was evidence to support the submitted but unfound mitigating circumstances. Although defendant did not object to the instructions at trial, the Supreme Court chose to apply Appellate Rule 2 and consider the error as if defendant had timely objected. Am Jur 2d, Homicide 513.

Criminal Law 1140 (NCI4th) — nonstatutory aggravating factor — pecuniary gain — defendant not hired or paid Pecuniary gain may be used as a nonstatutory aggravating factor under the Fair Sentencing Act in cases in which defendant was not hired or paid to commit the crime provided pecuniary gain is not an element essential to the establishment of the crime which is sought to be aggravated. Since pecuniary gain is not an essential element of the crimes of second degree murder, conspiracy to commit murder, and solicitation to commit murder, the trial court did not err in finding pecuniary gain as a nonstatutory aggravating factor for those crimes where there was plenary evidence that defendant and the victim's wife intended to live together after the victim's death and to share the proceeds of a life insurance policy on the victim as well as the land and mobile home belonging to the victim. Am Jur 2d, Criminal Law 598, 599; Homicide 552-554.<page_number>Page 609</page_number>