Volume 328 — North Carolina Reports

Rape and Allied Offenses 5 (NCI3d) — rape and sexual offenses — child victim — sufficient evidence as to time The State's evidence was sufficient to allow the jury to consider two first degree rapes and two first degree sexual offenses allegedly committed by defendant on his three-year-old stepdaughter between 1 and 29 February 1988 and between 1 and 31 March 1988 where it tended to show: the offenses<page_number>Page 73</page_number> allegedly occurred in the mobile home where the victim lived with her mother and defendant; the victim told her stepsister, defendant's natural daughter, that defendant "won't leave me alone; he keep putting his private in mine"; the stepsister visited the home in February and March 1988, and on each visit the victim would talk to her about the assaults; one of these occasions was on Valentine's Day, which is 14 February; the stepsister went to a party for the victim's 16 March 1988 birthday, and the victim told her something had happened "near the birthday"; when asked how often defendant did bad things to her, the victim testified that "he did it when my mommy go to work" and that her mother went to work "most of the days"; the victim testified that the defendant "usually" did it in the bed and when her mother was there, he "usually" did it in the bathroom; the stepsister testified that she visited at the mobile home every other weekend and that the victim told her something had happened "all the time"; the victim told a social worker that defendant "had put his finger in her tail"; the victim told a pediatrician that defendant "stuck his fingers in my tail," and she responded "yes" when the pediatrician asked her if that had happened before; the victim told the examining physician defendant put "his thing" in her, and in response to the physician's inquiry concerning the number of times, she held up three fingers on each hand; the examining physician testified that the victim's vaginal opening was larger than he would have expected had only digital manipulation occurred; and the stepsister testified that defendant had abused her in a similar manner, including abuse by penetration. The temporal uncertainty affected the weight rather than the admissibility of the evidence, and the motion to dismiss on the ground that the State's evidence failed to fix a definite time was properly denied. Am Jur 2d, Infants 17.5; Rape 52, 71, 73, 75, 88, 89, 101. <block_quote> Admissibility, in rape case, of evidence that accused raped or attempted to rape person other than prosecutrix. 2 ALR4th 330.</block_quote>

1. Fraud 12.1 (NCI3d); Unfair Competition 1 (NCI3d) — sale of house — summary judgment for defendant builder — no error The trial court did not err by granting defendant Donald Thompson's motion for summary judgment as to allegations of fraud and unfair or deceptive practices arising from the sale of a house where plaintiffs produced no evidence that this defendant (the builder) made any false representation as to a material past or existing fact and no facts were presented by plaintiff to show any immoral, oppressive, unscrupulous, or deceptive conduct on the part of this defendant. Am Jur 2d, Fraud and Deceit 108, 158; Summary Judgment 26, 27. 2. Fraud 12.1 (NCI3d) — sale of house — fraud — summary judgment for seller — no error The trial court did not err by granting summary judgment for defendant Dorothy Kefgen (the seller) on claims of fraud arising from the sale of a house where plaintiffs produced a forecast of some evidence of misrepresentation by Mrs. Kefgen about the condition of the house and that the house did not have termites, but did not bring forth any evidence which tends to show that Mrs. Kefgen knowingly made false misrepresentations with intent to deceive the plaintiffs. Am Jur 2d, Fraud and Deceit 108, 158; Summary Judgment 26, 27. <block_quote> Duty of vendor of real estate to give purchaser information as to termite infestation. 22 ALR3d 972.</block_quote> 3. Fraud 12.1 (NCI3d); Unfair Competition 1 (NCI3d) — sale of house — fraud and unfair practice — summary judgment for realtor — error The trial court erred in granting summary judgment for defendants Wynelle Thompson (the realtor who showed the<page_number>Page 203</page_number> house) and Beverly-Hanks (her real estate agency) on claims for fraud and unfair or deceptive practices arising from the sale of a house where the record reflects that plaintiffs discussed with Wynelle Thompson numerous times the need to have an independent inspection of the house before closing; plaintiffs provided evidence that they would not have closed on the house had they not received an independent investigation of the general soundness of the house; Mrs. Thompson told plaintiffs she would engage the services of a building inspector and asked the builder to specify the structural integrity of the house; and, while Mrs. Thompson testified that she did not know that the building inspector had previously inspected the house for the Kefgens (sellers), plaintiffs provided evidence tending to show that Mrs. Thompson had at minimum aided in engaging the inspector and that he was hired because he had inspected the house before. Am Jur 2d, Fraud and Deceit 108, 158; Summary Judgment 26, 27. <block_quote> Real estate broker's liability to purchaser for misrepresentation or nondisclosure of physical defects in property sold. 46 ALR4th 546.</block_quote>

1. Criminal Law 616 (NCI4th) — motion to dismiss — substantial evidence test When a defendant moves for dismissal in a criminal case, the trial court is to determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. It is not the rule in this jurisdiction that the trial court is required to determine that the evidence excludes every reasonable<page_number>Page 232</page_number> hypothesis of innocence before denying a defendant's motion to dismiss. Am Jur 2d, Criminal Law 512. 2. Criminal Law 621 (NCI4th) — motion to dismiss — circumstantial evidence The test of the sufficiency of the evidence to withstand the defendant's motion to dismiss is the same whether the evidence is direct, circumstantial, or both. Therefore, if a motion to dismiss calls into question the sufficiency of circumstantial evidence, the issue for the court is whether a reasonable inference of the defendant's guilt may be drawn from the circumstances. Am Jur 2d, Criminal Law 512; Evidence 1125, 1126. 3. Homicide 4.3 (NCI3d) — premeditation, deliberation and intent to kill — effect of passion One may deliberate, may premeditate and may intend to kill after premeditation and deliberation although prompted and to a large extent controlled by passion at the time. Am Jur 2d, Homicide 52, 53. 4. Homicide 21.5 (NCI3d) — premeditation and deliberation — intent to kill — sufficiency of evidence Evidence tending to show that defendant stabbed the female victim at least thirty-nine times after she had been shoved to a couch in her home by defendant and that defendant stabbed her with sufficient force to bend the first knife he used before he picked up a second knife to complete his murderous attack would permit reasonable findings that the killing was especially brutal and that the defendant struck many of the deadly blows after the victim had been felled and rendered helpless, and such evidence, standing alone, was substantial evidence tending to show premeditation and deliberation. Further, substantial evidence tending to show premeditation and deliberation was also substantial evidence of intent to kill. Am Jur 2d, Homicide 439.<page_number>Page 233</page_number> 5. Homicide 25.2 (NCI3d) — intent to kill, premeditation and deliberation — mental capacity — instructions sufficient Pattern jury instructions given by the trial court in a first degree murder case included the substance of defendant's requested instructions on intent to kill, premeditation and deliberation, and the court's instructions on mental capacity to form a specific intent or to premeditate or deliberate also included the substance of instructions requested by defendant. Therefore, the trial court did not err in declining to give defendant's requested instructions. Am Jur 2d, Homicide 497.

Rules of Civil Procedure 58 (NCI3d) — entry of judgment — adoption of proposed order and findings Plaintiff's written notice of appeal on 6 April 1989 in a child custody action was timely where entry of judgment occurred on 6 April 1989, the date the court adopted the proposed order and findings submitted by the prevailing party, rather than on 17 January 1989, when the court merely announced in open court its decision regarding custody. The language of N.C.G.S. <cross_reference>1A-1</cross_reference>, Rule 58 clearly establishes that entry of judgment occurs when the clerk makes a notation in the minutes; in cases where the procedures used do not fit within the express provisions of the rule or where there is no evidence to indicate when or whether such notation was made, the spirit and purpose of the rule should determine when entry of judgment occurs. Relevant factors in this analysis are: (1) an easily identifiable point at which entry occurred, such that (2) the parties have fair notice of the court's judgment and the time thereof, and that (3) the matters for adjudication have been finally and completely resolved so that the case is suitable for appellate review. Here, the 17 January announcement of the custody decision was not an easily identifiable point for determining that the court had entered rather than rendered judgment because there were required findings yet to be made and visitation was yet to be determined. The parties thus did not have fair notice that the time for taking an appeal had commenced and, furthermore, because visitation rights remained at issue, all matters for adjudication had not been resolved finally and completely. <block_quote> Am Jur 2d, Appeal and Error 69, 301; Judgments 161, <cross_reference>163-165</cross_reference>.</block_quote>

1. Jury 6.3 (NCI3d) — voir dire — detailed questioning restricted — no error The trial court did not err during jury selection in a first degree murder prosecution by allowing defense counsel to question in detail only those individual jurors who responded positively to questions of the whole panel and who seemed to favor the death penalty. The trial court's conduct of the jury selection process was well within its discretionary authority and did not violate N.C.G.S. <cross_reference>15A-1214</cross_reference> (c). Am Jur 2d, Jury 200, 202. 2. Constitutional Law 344 (NCI4th) — jury selection — absence of defendant — no prejudicial error There was no prejudicial error in a first degree murder prosecution where the trial court began the second day of jury selection before defendant was present in court. It was error for the trial court to question jurors in defendant's absence,<page_number>Page 378</page_number> but defendant's absence during the preliminary questioning of prospective jurors did not result in the rejection of any juror whom defendant was entitled to have on the panel or the seating of any juror whom defendant was entitled to reject either for cause or peremptorily. Am Jur 2d, Jury 190. <block_quote> Validity of jury selection as affected by accused's absence from conducting of procedures for selection and impaneling of final jury panel for specific case. 33 ALR4th 429.</block_quote> 3. Jury 6 (NCI3d) — voir dire — statements of prosecutor — aggravating circumstances not ultimately relied upon There was no prejudicial error during jury selection for a first degree murder from the prosecutor's reference to certain aggravating circumstances upon which the State ultimately did not rely. A new sentencing proceeding was ordered on other grounds and, as to the guilt phase, there was no further mention of other crimes; the evidence of defendant's guilt of murder and rape was strong; and the entire focus of the trial related solely to those crimes. Although a prosecutor during jury voir dire should limit references to aggravating factors, including the underlying felonies listed in N.C.G.S. <cross_reference>15A-2000</cross_reference> (e)(5), to those of which there will be evidence and upon which the prosecutor intends to rely, here there was no reasonable possibility that a different result would have obtained had not the prosecutor mentioned the other crimes. Am Jur 2d, Jury 204, 207. 4. Criminal Law 412 (NCI4th) — voir dire — prosecutor's forecast — aggravating factor rejected by judge There was no prosecutorial misconduct in a first degree murder prosecution from the prosecutor's forecast to the jury during voir dire that it might consider evidence of an especially heinous, atrocious or cruel killing as an aggravating factor when the judge decided at sentencing not to submit that factor. Even if the evidence was not sufficient to sustain submission of the especially heinous aggravating factor, the case was not so lacking in evidentiary support for that factor that it was impermissible for the prosecutor to forecast reliance on it at the outset of the trial. Am Jur 2d, Jury 204, 207.<page_number>Page 379</page_number> 5. Criminal Law 361 (NCI4th) — members of victim's family — seated behind prosecution within bar — no abuse of discretion There was no abuse of discretion in a first degree murder prosecution where the court allowed the prosecutor to seat members of the victim's family behind the prosecution table and within the bar of the courtroom where the prosecutor made no mention of the victim's family and did not identify family members sitting inside the bar. Where particular persons who are witnesses or who have an interest in the trial sit in the courtroom is a matter left to the trial court's discretion. Am Jur 2d, Criminal Law 878; Trial 296. 6. Criminal Law 506 (NCI4th) — first degree murder — unsworn deputy transporting jury — no prejudicial error There was no prejudicial error in a first degree murder prosecution from an unsworn deputy transporting the jury where the properly sworn bailiff was disabled; another deputy was assigned to the task and transported the jurors without being sworn; the court questioned the deputy for the record upon discovering what had happened; the deputy stated that he knew nothing about the case other than defendant's name when he transported the jury and that he had not discussed the facts or circumstances or proceedings of the case with any jury member; and the court then swore in the deputy. Defendant does not contend that his case was affected by the unsworn deputy and prejudice will not be presumed, as in State v. Mettrick, <cross_reference>305 N.C. 383</cross_reference>, because the appearance of impropriety which prompted the Mettrick decision did not exist here. N.C.G.S. <cross_reference>15A-1236</cross_reference>. Am Jur 2d, Trial 943, 944. 7. Searches and Seizures 36 (NCI3d) — clothing — seized after arrest — no error The trial court did not err in a first degree murder prosecution by denying defendant's motion to suppress clothing seized from him several hours after his arrest where the police had already taken lawful custody by arresting defendant. Am Jur 2d, Searches and Seizures 37, 93. <block_quote> Modern status of rule as to validity of nonconsensual search and seizure made without warrant after lawful arrest as<page_number>Page 380</page_number> affected by lapse of time between, or difference in places of, arrest and search. 19 ALR3d 727.</block_quote> 8. Searches and Seizures 36 (NCI3d) — murder — alleged unnecessary delay in first appearance — seizure of clothing — no error The clothing of a first degree murder defendant was not taken as evidence as a result of an unnecessary delay in defendant's appearance before a magistrate in violation of N.C.G.S. <cross_reference>15A-501</cross_reference> (2) where defendant was arrested between 10:30 and 11:00 a.m. and taken to a detective's office; taken before a magistrate about noon, charged with murder, and returned to the detective's office; and defendant's clothing was taken sometime between 1:00 and 3:00 p.m. There was no showing of any unnecessary delay between defendant's arrest and appearance before the magistrate, and, even if there was, no showing that the clothes were taken as a result. Am Jur 2d, Searches and Seizures 37, 93. <block_quote> Modern status of rule as to validity of nonconsensual search and seizure made without warrant after lawful arrest as affected by lapse of time between, or difference in places of, arrest and search. 19 ALR3d 727.</block_quote> 9. Criminal Law 84 (NCI3d) — hair samples — nontestimonial identification order — no unreasonable intrusion on privacy The taking of head and pubic hair samples pursuant to a nontestimonial identification order was not an unreasonable intrusion on defendant's privacy. N.C.G.S. <cross_reference>15A-271</cross_reference>. <block_quote> Am Jur 2d, Expert and Opinion Evidence 278, 301; Searches and Seizures 105.</block_quote> 10. Criminal Law 50 (NCI3d) — murder — opinion testimony of serologist — admissible There was no error in a first degree murder prosecution from the admission of an SBI serologist's testimony that approximately one percent of North Carolinians have the same blood characteristics as the victim where the witness testified that his opinion was based on statistics from SBI studies conducted between 1979 and 1983 and from scientific journals, both of which he testified are generally relied on by other experts in his field. The agent's testimony laid a sufficient<page_number>Page 381</page_number> foundation to support the admission of his expert opinion, and his estimate of the number of blood analyses he had performed in his career was relevant to the issue of his experience. <block_quote> Am Jur 2d, Expert and Opinion Evidence 60, 62, 63; Homicide 397.</block_quote> 11. Criminal Law 42.1 (NCI3d) — murder — carpet fibers — admissible The trial court did not err in a first degree murder prosecution by admitting testimony comparing carpet fibers from defendant's residence taken more than a month after his arrest with fibers found on his clothing the day of his arrest where the officer who took samples from defendant's home testified that he did not know if the carpet had been in defendant's home at the time of the murder. It is common knowledge that homeowners do not change or replace carpets as frequently as once every several months and, nothing else appearing, a jury could reasonably infer that a carpet was in a home several months before and after the time it was actually found there. That there was no direct evidence that the carpet was in defendant's home at the time of defendant's arrest goes to the weight of the evidence rather than its admissibility. Am Jur 2d, Evidence 774, 776. 12. Criminal Law 50.1 (NCI3d) — murder — hair analysis — expert opinion The trial court did not err in a first degree murder prosecution by allowing the State to introduce certain testimony by an SBI expert in hair analysis where the SBI agent's testimony that a hair found on the victim's clothing had some characteristics, albeit limited, inconsistent with the victim's hair tends to make the sexual assault upon the victim more probable and his testimony that the hair had some characteristics, albeit limited, consistent with defendant's hair tends to make defendant's contact with the victim more probable. <block_quote> Am Jur 2d, Expert and Opinion Evidence 278, 301; Homicide 397.</block_quote><page_number>Page 382</page_number> 13. Criminal Law 88.2 (NCI3d) — murder — cross-examination of defendant's mother — inflammatory questions concerning inadmissible evidence There was insufficient evidence to require a new trial in a murder prosecution where the prosecutor's questions and statements concerning locks on defendant's door and whether defendant's mother feared him were clearly improper, but the trial court sustained defendant's objections, defendant's mother testified that she was not afraid of her son, and the properly admitted evidence against defendant was strong. Defendant did not meet his burden of showing a reasonable possibility that there would have been a different result without the prosecutor's improper cross-examination. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 404 (a). Am Jur 2d, Trial 194; Witnesses 471-476. 14. Homicide 21.5 (NCI3d) — first degree murder — evidence sufficient to submit to jury The evidence of first degree murder was sufficient to submit to the jury where it was clear that the circumstantial evidence was sufficient to enable a rational jury to find that defendant was the perpetrator of the crimes for which he was convicted, and evidence that defendant cites as anomalous to his guilt simply raised a conflict for the jury to resolve. Am Jur 2d, Homicide 425, 426. 15. Criminal Law 462 (NCI4th) — murder — prosecutor's argument on matters not in evidence — no objection — no error The trial court in a first degree murder prosecution was not required to intervene ex mero motu where the prosecutor argued that a hair from defendant's head was found under the victim's fingernail and the pathologist testified that the hair was retrieved either from under the victim's fingernail or from the back of the victim's hand. The prosecutor's statement did not so grossly contradict the evidence as to require the trial court to recognize the discrepancy and intervene ex mero motu. Am Jur 2d, Trial 234, 259.<page_number>Page 383</page_number> 16. Criminal Law 436 (NCI4th) — murder — prosecutor's argument — conviction needed to prevent defendant from committing more crimes — objection sustained — no error Although it was improper for the prosecution in a first degree murder prosecution to urge the jury to convict defendant in order to prevent him from committing more crimes, the court properly sustained defendant's objection and instructed the jurors not to consider the argument, and it must be assumed the jury followed the instruction. Am Jur 2d, Trial 226, 315. 17. Criminal Law 1352 (NCI4th) — murder — sentencing — McKoy error — sentence vacated and remanded A death sentence was vacated and remanded under State v. McKoy, <cross_reference>327 N.C. 31</cross_reference>, where it could not be said beyond a reasonable doubt that, absent the unanimity instruction, no juror could have found the existence of the impaired capacity mitigating factor, weighed it in the final balancing process in deciding between life imprisonment and death, and concluded that life imprisonment should have been imposed. Am Jur 2d, Criminal Law 609; Homicide 553.

1. Criminal Law 35 (NCI3d) — rape, robbery, and murder — evidence of prior assault — offered to show guilt of another — not admissible The trial court did not err in a prosecution for robbery, rape and murder by excluding evidence that someone other than the victim had been attacked two months earlier in the hospital basement, where this attack occurred, by a black male attired similarly to the suspect in this case. The crimes were not similar because the earlier victim was not raped, there was no evidence that her attacker was attempting to rape her, the attacker's identity was not known, and there was no evidence that the man who grabbed the earlier victim also committed the offense against the victim here. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 401. Am Jur 2d, Evidence 441. 2. Criminal Law 66.11 (NCI3d) — out-of-court identification — procedure suggestive — no prejudice The trial court did not err in a prosecution for robbery, rape and murder by admitting out-of-court identifications by witnesses where the identification procedures the officers chose, coupled with their statements to two of the three witnesses that they had a suspect, were unduly suggestive, but the corrupting effect of the suggestive identification procedure was insufficient to tip the scales against defendant. None of the witnesses conferred with one another prior to viewing defendant, the witnesses had substantial opportunities to view defendant, the descriptions were substantially similar and were accurate, the witnesses indicated a higher than average degree of attention, the identifications were certain, and the identifications followed within three hours of the initial sightings. Am Jur 2d, Evidence 371, 371.4, 371.5, 372. <block_quote> Admissibility of evidence of showup identification as affected by allegedly suggestive showup procedures. 39 ALR3d 791.</block_quote><page_number>Page 506</page_number> 3. Homicide 18.1 (NCI3d) — premeditation and deliberation — inference from strangulation — no error The trial court did not err by allowing the prosecutor to argue that the jury could infer premeditation and deliberation from the strangulation of the victim. The jury may infer premeditation and deliberation from the circumstances of a killing, including strangulation. Am Jur 2d, Homicide 276, 439; Trial 260. 4. Criminal Law 685 (NCI4th) — request for special instructions not in writing — not timely The trial court did not err in a rape prosecution by refusing to give defendant's requested instruction on serious personal injury where defendant made his request orally after the jury retired. Requests for special instructions should be submitted in writing at or before the jury instruction conference. Am Jur 2d, Trial 580, 582, 583.

Municipal Corporations 10 (NCI3d) — purchase of uninhabitable townhouse unit — acts and omissions of city building inspector — occupancy as intervening cause of damages Plaintiffs' damages from their purchase of a new townhouse unit that was unfit for habitation were not proximately caused by a city building inspector's alleged violations of N.C.G.S. <cross_reference>160A-417</cross_reference>, -420, and -423 and State Building Code sections 105.4 (f), 105.6, and 105.10 by his issuance of a building permit to an unlicensed contractor, his failure to observe Building Code violations in construction of the unit, and his failure to issue a certificate of compliance or notify plaintiffs of Building Code violations because plaintiffs' election to take title and assume occupancy of the townhouse in violation of the law<page_number>Page 690</page_number> before the building inspector had an opportunity to make the final inspection and issue a certificate of compliance constituted an intervening, independent cause of plaintiffs' damages. Therefore, the trial court did not err in allowing defendants' Rule 12 (b)(6) motion to dismiss plaintiffs' claim against defendant city based on defendant building inspector's willful and wanton conduct. <block_quote> Am Jur 2d, Municipal, County, School, and State Tort Liability 221.</block_quote>