Volume 329 — North Carolina Reports

1. Criminal Law 162 (NCI3d) — admissibility of evidence — necessity for objection at trial Where defendant did not object at trial to any lack of proper authentication of photographs, he cannot on appeal assign error to the admissibility of the photographs on this ground. Am Jur 2d, Evidence 788. 2. Criminal Law 34.7 (NCI3d) — other wrongs or acts — defaced photographs — relevance to show malice and motive Evidence that defendant gave a murder victim defaced enlargements of photographs of the victim's wife four months before the victim was shot, considered with evidence that defendant returned the original photographs to the victim's wife just moments before the shooting, was relevant and admissible to show defendant's malice toward the victim and his wife, defendant's fixation on the victim's wife, and defendant's motive to kill the victim. The passage of four months did not render<page_number>Page 192</page_number> the evidence irrelevant, and the probative value of this evidence to show malice was not outweighed by the potential for unfair prejudice. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rules 403 and 404 (b). Am Jur 2d, Evidence 789; Homicide 280, 283. 3. Homicide 28.3 (NCI3d) — self-defense — aggressor instruction — supporting evidence The trial court's aggressor instruction on self-defense was supported by the testimony of the State's witnesses that defendant threatened the victim just seconds before shooting him — sufficiently close in time to the alleged crime to affect defendant's self-defense argument. Although defendant's testimony contradicted that of the State, the trial court properly allowed the jury to determine which testimony to believe. Am Jur 2d, Homicide 519, 520. 4. Homicide 25.2 (NCI3d) — premeditation and deliberation — brutal circumstances of killing — excessive force — instruction not plain error The trial court did not commit plain error in instructing jurors in a first degree murder prosecution that they could infer premeditation and deliberation from the "brutal or vicious circumstances of the killing" and from defendant's use of "grossly excessive force." Evidence that defendant fired a semi-automatic rifle, fully loaded with sixteen rounds, seven times at the victim, hitting his target twice, showed grossly excessive force. Assuming without deciding that the evidence did not support a "brutal or vicious" circumstance, such instruction did not constitute plain error in light of the other strong evidence of premeditation and deliberation. Am Jur 2d, Homicide 501.

1. Criminal Law 496 (NCI4th) — testimony read during jury deliberations — no error The trial court in a first degree murder case did not err by permitting the complete testimony of the victim's daughter to be read to the jury during the course of its deliberations, since the entire jury was present during the foreman's request and the recitation of the testimony; the trial court stated three times that it was permitting the testimony to be read to the jury in the trial court's discretion; the court twice instructed the jury that it must remember and consider all of the evidence; the most damaging evidence against defendant was testimony concerning defendant's own statements and the physical evidence presented, not the testimony of the victim's daughter; and the court insured that defendant would not suffer any unfair prejudice when it had the testimony from both the direct and the cross-examinations of the witness read to the jury and properly instructed the jury to consider all the evidence presented. N.C.G.S. <cross_reference>15A-1233</cross_reference> (a). Am Jur 2d, Trial 1025, 1041-1044. 2. Criminal Law 868 (NCI4th) — jury request for instructions — more thorough instruction given than requested — no error The trial court did not err in failing to instruct the jury, in response to a juror's specific request for clarification, that the intent to kill essential to the offense of first degree murder must have existed at the time the act which caused death occurred, since the court determined that there was general confusion among the jurors about the elements of the crime charged and properly determined that repeating the pertinent portions of its instructions in their entirety would answer all the questions, and the trial court's additional instructions avoided giving undue prominence to any one of the questions or any part of the instructions. N.C.G.S. <cross_reference>15A-1234</cross_reference>. Am Jur 2d, Homicide 496, 497, 499.<page_number>Page 203</page_number>

False Imprisonment 3 (NCI3d) — alleged shoplifting — false imprisonment — punitive damages proper There was sufficient evidence of outrageous conduct, in addition to that conduct constituting false imprisonment in an alleged shoplifting incident, to survive defendants' motion for summary judgment on the issue of punitive damages where such evidence tended to show that defendant Nourse, who identified himself as a store security officer, impersonated a police officer by using a badge of his own design; plaintiff was restrained against her will in the store security office for approximately one-half hour; plaintiff was badgered, insulted, and pressured to confess by defendant Nourse despite<page_number>Page 227</page_number> her efforts to prove her innocence; plaintiff was frightened and upset and asked if she could leave; defendant unlawfully detained plaintiff after determining that no offense had been committed, N.C.G.S. <cross_reference>15A-404</cross_reference> (d) (1988); plaintiff was made to give up personal information including her driver's license number, telephone number, and social security number; and plaintiff was forced to sign a release of liability as a condition to her release from defendant Nourse's custody. Am Jur 2d, False Imprisonment 141-144. <block_quote> Defendant's state of mind necessary or sufficient to warrant award of punitive damages in action for false arrest or imprisonment. 93 ALR3d 1109.</block_quote>

1. Jury 7.14 (NCI3d) — murder — jury selection — peremptory challenges — no racial motivation Defendant in a murder and sexual offense prosecution was not entitled to a new trial based on the prosecutor's peremptory challenges against prospective black jurors where the trial court did not make a prima facie finding of discrimination but nevertheless required the prosecutor to explain each peremptory challenge of a black person. The United States Supreme Court has held that the issue of the prima facie case is moot where the prosecutor offers racially neutral explanations for his peremptory challenges and the court finds them to be true and not pretextual. Great deference is accorded the trial court's decision on the ultimate question of the prosecutor's discriminatory intent in peremptorily challenging Jurors. Am Jur 2d, Jury 173-176, 237. 2. Jury 7.14 (NCI3d) — murder — jury selection — peremptory challenges of black prospective jurors — no state constitutional violation The peremptory removal of black prospective jurors in a murder and sexual offense prosecution did not violate Article I, Section 26 of the Constitution of North Carolina. Am Jur 2d, Jury 173-176, 237. 3. Rape and Allied Offenses 5 (NCI3d); Homicide 21.6 (NCI3d) — first degree sexual offense — felony murder — sufficiency of the evidence The trial court did not err by denying defendant's motion to dismiss charges of first degree sexual offense and felony murder where the victim may have been dead when the sexual offense occurred. It is unnecessary to decide whether the victim was alive when the offense was committed because the sexual act was committed during a continuous transaction that began when the victim was alive. Am Jur 2d, Rape 41.<page_number>Page 424</page_number> 4. Searches and Seizures 4 (NCI3d) — nontestimonial identification order — no warrant — admissible The trial court did not err in a prosecution for first degree sexual offense and murder by admitting evidence of defendant's fingernails, pubic hair, teeth, saliva, and lips obtained pursuant to a nontestimonial identification order because that evidence was properly obtained while defendant was in police custody. Obtaining a blood sample pursuant to the same order, without a search warrant, was harmless error beyond a reasonable doubt because, in addition to other incriminating evidence, defendant admitted being at the crime scene, passing out during an argument with the victim, awaking to find her dead, and leaving traces of his blood in the room. Am Jur 2d, Rape 61. <block_quote> Physical examination or exhibition of, or tests upon, suspect or accused, as violating rights guaranteed by Federal Constitution — Federal cases. <cross_reference>16 L.Ed.2d 1331</cross_reference>, 22 L.Ed.2d 909.</block_quote> 5. Constitutional Law 309 (NCI4th) — murder and sexual offense — concession of guilt — not ineffective assistance of counsel Defendant was not denied effective assistance of counsel in a prosecution for murder and sexual offense where defendant's counsel conceded to the jury that defendant had committed second-degree murder and had completed at least one element of the sexual offense. The trial court found on supporting evidence that defendant consented orally and in writing to counsel's strategy to admit his guilt to a charge of second-degree murder and nothing in the record contradicts that finding. The trial court also concluded that defense counsel never conceded defendant's guilt of a sexual offense and, for jurors to convict defendant under the trial court's instructions, they had to reject defense counsel's view of the facts. Am Jur 2d, Criminal Law 967 et seq. 6. Rape and Allied Offenses 6 (NCI3d) — sexual offense — requested instruction that victim must be alive — denied — no error The trial court did not err in a prosecution for first degree sexual offense and murder by denying defendant's requested instruction that the jurors had to first find that the victim was alive when sexually assaulted in order to find defendant guilty of the sexual offense. The requested instruction was<page_number>Page 425</page_number> not a correct statement of North Carolina law, and the North Carolina Supreme Court has previously applied the continuous transaction doctrine to a sequence of sexual offense and murder. Am Jur 2d, Rape 108. 7. Criminal Law 1352 (NCI4th) — murder — sentencing — McKoy error A sentence of death in a first-degree murder prosecution was vacated and the case remanded for a new sentencing hearing where the trial court instructed the jury to find any mitigating circumstances unanimously and to reject those not unanimously found to exist. The error was prejudicial because defendant's testimony could support a reasonable inference that defendant was under the influence of heroin at the time of the crime and that his ability to appreciate the criminality of his conduct or to conform his conduct to the law was impaired. The circumstance is statutory and therefore deemed to have mitigating value. Am Jur 2d, Trial 888-894.

1. Criminal Law 50.1 (NCI3d) — expert testimony — voluntariness of water consumption Testimony by an expert in pediatric critical care medicine that the amount of water consumed by the victim would not voluntarily be taken by a six-year-old boy was a proper subject matter for an expert opinion. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 702. Am Jur 2d, Homicide 398.<page_number>Page 467</page_number> 2. Criminal Law 50.1 (NCI3d) — expert testimony on ultimate issue Testimony by an expert witness was not inadmissible because it encompassed the ultimate issue to be decided by the trier of fact. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 704. Am Jur 2d, Homicide 398. 3. Criminal Law 50.1 (NCI3d) — expert testimony — voluntariness of water consumption — victim threatened or coerced Expert opinion testimony that the six-year-old victim would not "voluntarily" drink the quantity of water which he consumed and that the victim was "threatened" or "coerced" did not contain legal terms of art not readily apparent to the witness so as to render the testimony inadmissible, since the common, everyday meanings of those terms are consistent with the legal definitions. Furthermore, the admission of the expert testimony was not prejudicial to defendant where defendant admitted at trial that he coerced the child victim to drink the water to "flush out his system." Am Jur 2d, Homicide 398. 4. Homicide 25.1 (NCI3d) — murder by torture — instruction on malice not required The trial court did not err in not specifically instructing upon malice as a prerequisite to a finding of murder by torture since the commission of torture implies the requisite malice, and a separate showing of malice is not necessary. Am Jur 2d, Homicide 267, 269, 500. 5. Homicide 21.6 (NCI3d) — first degree murder by torture — sufficiency of evidence of torture The State presented adequate evidence of torture to support defendant's conviction of the first degree murder of his girlfriend's six-year-old child by torture where the evidence tended to show that the child died as a result of water intoxication after defendant had coerced him to drink large quantities of water; the jury could infer an intent to cause the child grievous pain from defendant's pattern of using extraordinary disciplinary methods to punish and humiliate the child for disobeying rules; expert testimony was presented that the child's stomach was distended to accommodate large quantities<page_number>Page 468</page_number> of water and that this is very painful; evidence showed that the child vomited dozens of times as he was urged to drink more and more water; other testimony indicated that the fluid that filled the child's lungs would have created a sensation similar to suffocation and that the swelling of his brain resulting from the ingestion of water created a tremendous headache, which culminated in a scream followed by blindness; and there was adequate evidence for the jury to find that defendant's acts in this instance were for the purpose of punishment. Am Jur 2d, Homicide 85. What constitutes murder by torture. 83 ALR3d 1222. 6. Criminal Law 21.5 (NCI3d) — first degree murder — sufficient evidence of premeditation and deliberation The evidence was sufficient to support the trial judge's instructions on first degree murder with premeditation and deliberation where it tended to show that the six-year-old son of defendant's girlfriend died as a result of water intoxication after he was coerced by defendant to drink large quantities of water; previous ill will by defendant toward the child victim was shown through testimony of defendant's pattern of extraordinary disciplinary procedures intended to oppress and humiliate the victim; the manner of killing, which involved the painful ingestion of large quantities of water over a period of two to three hours, indicates a particularly brutal method of killing; and evidence indicated that the victim suffered from bruises to his head and buttocks possibly inflicted during this same period of time. Am Jur 2d, Homicide 85, 433, 438, 439. 7. Homicide 25.1 (NCI3d) — first degree murder by torture — instruction defining torture The trial court's instruction that torture is "the course of conduct by one or more persons which intentionally inflicts grievous pain and suffering upon another . . ." adequately defined torture for purposes of first degree murder. The instruction was not deficient in failing to require that the pain be inflicted for pain's sake or for the torturer's own sake. Am Jur 2d, Homicide 48, 499.<page_number>Page 469</page_number> 8. Homicide 4.1 (NCI3d) — murder by torture — statute not unconstitutionally vague In light of the common understanding of what defines torture, the murder by torture statute is not unconstitutionally vague and puts a reasonable person on notice of what is forbidden. N.C.G.S. <cross_reference>14-17</cross_reference>. Am Jur 2d, Homicide 48. 9. Criminal Law 33.2 (NCI3d) — murder of child by torture — grandmother's advice to mother — irrelevancy In a prosecution of defendant for the murder by torture of his girlfriend's six-year-old son by coercing him to drink large quantities of water over a short period of time, testimony that the child's grandmother told the mother to watch the child and give him plenty of fluids was irrelevant and inadmissible to support defendant's defense that he was administering a "home remedy" and was not punishing the child where there was no evidence that the mother conveyed this advice to defendant. Am Jur 2d, Homicide 270. 10. Criminal Law 34.7 (NCI3d) — murder by torture — prior disciplinary acts — competency to show intent, motive, common plan, absence of accident In a prosecution of defendant for first degree murder by torture of his girlfriend's six-year-old son by coercing the child to drink large quantities of water as a punishment for disobeying a rule, evidence describing prior extraordinary disciplinary techniques carried out by defendant against the child during the year preceding the child's death was properly admitted for the limited purpose of showing intent, motive, common plan and absence of mistake or accident. Furthermore, the trial court did not abuse its discretion in admitting this evidence as being more probative than prejudicial. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rules 403, 404 (b). Am Jur 2d, Homicide 298, 316. 11. Homicide 25.2 (NCI3d) — premeditation and deliberation — inference from manner of killing — instruction supported by evidence The trial court did not err in instructing the jury that premeditation and deliberation could be inferred from the means<page_number>Page 470</page_number> or manner of the killing where there was evidence that defendant coerced the six-year-old victim to drink water until he died, despite observing the child's repeated vomiting and complaints of headaches, since this evidence was ample to support premeditation and deliberation through circumstantial evidence of the means or manner of the killing. Am Jur 2d, Homicide 501.

1. District Attorneys 1 (NCI4th) — conflict of interest — order that district attorney request prosecution by attorney general — error The trial court exceeded its authority by ordering the District Attorney to request that the Attorney General prosecute the charges against defendant where a member of his staff had previously been employed by the Public Defender's office during defendant's first trial. The district attorneys of the state are independent constitutional officers, and it is apparent that our Constitution and statutes give the district attorneys of the state the exclusive discretion and authority to determine when to request the prosecution of any individual case by the special prosecution division. North Carolina Constitution, article IV, section 18; N.C.G.S. <cross_reference>114-11.6</cross_reference>. Am Jur 2d, Prosecuting Attorneys 32. 2. Attorney General 15 (NCI4th) — Attorney General ordered to prosecute — error The trial court exceeded its authority in a murder and burglary prosecution by ordering that the Attorney General's office immediately assume prosecution of the case. The General Assembly made it clear that the special prosecution division is to participate in criminal prosecutions only if the Attorney General approves in his sole discretion as an independent constitutional officer. Am Jur 2d, Attorney General 13, 27.<page_number>Page 590</page_number> 3. Courts 3 (NCI4th) — order that District Attorney withdraw from case — authority exceeded The trial court exceeded its authority in a prosecution for murder and burglary by ordering that the District Attorney and his entire staff withdraw from the case because a member of the staff had worked on the Public Defender's staff during defendant's first trial. Any order tending to infringe upon the constitutional powers and duties of an elected district attorney must be drawn as narrowly as possible and this order does not meet that standard. Am Jur 2d, Prosecuting Attorneys 32. 4. District Attorneys 4 (NCI4th) — conflict of interest — disqualification — definition of conflict The trial court exceeded its authority by ordering that the District Attorney and his entire staff withdraw from a murder and burglary prosecution because a member of his staff had worked for the Public Defender's office during defendant's first trial. It is apparent that the trial court ordered the District Attorney's office to withdraw solely on the ground that there was a possibility that an impression of conflict of interest might arise at some future time. A prosecutor may not be disqualified from prosecuting a criminal action unless and until the trial court determines that an actual conflict of interest exists; in this context, an actual conflict is demonstrated when a District Attorney or a member of his staff has previously represented the defendant with regard to the charges to be prosecuted and, as a result of the former attorney-client relationship, obtained confidential information which may be used to the defendant's detriment. Even then, any order of disqualification ordinarily should be directed only to the individual prosecutors exposed to the information. Am Jur 2d, Prosecuting Attorneys 32. <block_quote> Disqualification of prosecuting attorney on account of relationship with accused. 31 ALR2d 953.</block_quote>

Accountants 20 (NCI4th) — audited financial statement — liability to third party — summary judgment for defendants The trial court correctly granted summary judgment for defendant accountants in an action by a third-party creditor which relied upon a report of a 1981 financial statement prepared by defendants in extending credit to a company which subsequently entered bankruptcy. Both IMC, the company audited, and the accounting firm testified that there was no intent to benefit unsecured trade creditors; plaintiff was not aware that the audit was being performed; the partner in charge of the audit testified that IMC had not informed the accounting firm of any intention to provide copies of the audited financial statement to trade creditors; the accounting firm did not have knowledge that the audited financial statements would be provided to Dun Bradstreet; testimony of IMC's chief financial officer indicated that it was IMC's policy at that time not to distribute financial statements to trade creditors; only one trade creditor received a copy of the 1981 financial statements; the contract between IMC and the accounting firm never<page_number>Page 647</page_number> designated plaintiff as an intended beneficiary of the contract; the accounting firm's services were rendered directly to IMC and not to plaintiff; and plaintiff never saw a copy of the 1981 financial statement. Based upon the entire record, the plaintiff was not an intended third-party beneficiary of the contract between the audited company and the accounting firm. Am Jur 2d, Accountants 19. <block_quote> Liability of public accountant to third parties. 46 ALR3d 979.</block_quote>

1. Criminal Law 131 (NCI4th) — guilty plea — waiver of right to challenge indictment on constitutional grounds By pleading guilty to two charges of first degree murder, defendant waived his right to challenge the bills of indictment on the ground that there was racial discrimination in the selection of the foreman of the grand jury which returned the bills of indictment against him. Am Jur 2d, Criminal Law 490.<page_number>Page 687</page_number> 2. Constitutional Law 376 (NCI4th) — death penalty — racial discrimination — statistical studies Defendant could not establish a prima facie case of racial discrimination in the application of the death penalty under the Eighth and Fourteenth Amendments to the U.S. Constitution by statistical studies on the imposition of the death penalty. Nor did defendant make a prima facie showing that the manner in which our death penalty statute is enforced violates Art. I, 19 of the N.C. Constitution where the statistical studies offered by defendant do not relate specifically to North Carolina or to the district in which defendant was tried. Am Jur 2d, Criminal Law 594. <block_quote> Racial discrimination in punishment for crime. 40 ALR3d 227.</block_quote>

1. Homicide 21.5 (NCI3d) — first degree murder — premeditation and deliberation — evidence sufficient The trial court did not err in a first degree murder prosecution by denying defendant's motion to dismiss the charge based on premeditation and deliberation for insufficient evidence where there was plenary evidence of premeditation and deliberation and substantial evidence from which the jury could infer that defendant was the sole perpetrator of the murder. Am Jur 2d, Homicide 439. 2. Homicide 21.6 (NCI3d) — felony murder — evidence sufficient The evidence was sufficient to support defendant's conviction for first degree murder based on felony murder where the evidence was sufficient to show that the killing occurred during the perpetration of a robbery and sufficient for the jury to infer that it was defendant who alone perpetrated the murder while robbing his victim. Am Jur 2d, Homicide 435, 442.