Volume 330 — North Carolina Reports

1. Homicide 15.2 (NCI3d) — defendant's relationship with children and reconciliation attempts — exclusion harmless In a prosecution for the first degree murder of a man who was dating defendant's estranged wife, error, if any, in the court's exclusion of testimony by defendant's brother concerning defendant's good relationship with his children and his attempts to reconcile with his wife was harmless where the jury heard similar testimony by defendant; such evidence had little probative value on what happened at the time of the murder; there was plenary and convincing evidence of all elements of first degree murder, including premeditation and deliberation; and there was no reasonable possibility that the jury would have found defendant not guilty of first degree murder had it heard the excluded evidence. N.C.G.S. <cross_reference>15A-1443</cross_reference>(a). Am Jur 2d, Homicide 274. 2. Homicide 15.2 (NCI3d) — specific intent to kill — capability of defendant — expert testimony The trial court did not err in allowing an expert for the State to testify that defendant was capable of forming the specific intent to kill on the date of an alleged murder. Am Jur 2d, Homicide 395, 397. 3. Homicide 24.1 (NCI3d) — presumptions from use of deadly weapon — omission of "intentional" in instructions — no plain error While it was error for the trial court in a first degree murder case to omit the word "intentionally" before the word "killed" in its instructions permitting the jury to infer unlawfulness and malice from proof "that the defendant killed the victim with a deadly weapon," this omission did not rise to the level of plain error where the instructions, taken as a whole, made it clear that the killing of the victim must have been intentional in order for defendant to be convicted of first degree murder; all the evidence showed that the killing<page_number>Page 39</page_number> was intentional as opposed to accidental; and the jury found an intentional killing by its verdict of guilty of first degree murder. Am Jur 2d, Homicide 265, 509. 4. Homicide 25.2 (NCI3d) — specific intent to kill — consideration of defendant's mental state — failure to instruct not plain error The trial court's failure to instruct the jury in a first degree murder case that it could consider defendant's mental or emotional condition on the issue of defendant's specific intent to kill his victim did not constitute plain error where the court's instructions did direct the jury to consider evidence of defendant's mental and emotional state on the elements of premeditation and deliberation; the jury found the existence of those elements beyond a reasonable doubt; and there can be little doubt that the jury would have found the existence of the specific intent to kill element had it been told to consider evidence of defendant's emotional state on that element. Am Jur 2d, Homicide 501. 5. Assault and Battery 32 (NCI4th) — felonious assault — peremptory instruction on serious injury — when permitted A trial court may peremptorily instruct the jury on the serious injury element of felonious assault, N.C.G.S. <cross_reference>14-32</cross_reference>, if the evidence is not conflicting and reasonable minds could not differ as to the serious nature of the victim's injuries. Am Jur 2d, Assault and Battery 48; Homicide 579. 6. Assault and Battery 32 (NCI3d) — felonious assault — peremptory instruction on serious injury — sufficient evidence The trial court in a prosecution for felonious assault did not err in instructing the jury that a bullet wound that "enters the flesh and exits the flesh is a serious injury" where the defendant presented no evidence contradicting the State's evidence on the victim's injuries, and reasonable minds could not differ as to the seriousness of the victim's injuries where the evidence showed that a bullet ripped through the victim's ear mere inches from her skull, the victim required emergency room treatment for a gunshot wound, powder burns and lacerations<page_number>Page 40</page_number> on her ear and hand, and the victim still suffered from daily ringing in her ear at the time of trial. Am Jur 2d, Assault and Battery 48; Homicide 579. 7. Criminal Law 1352 (NCI4th) — capital sentencing proceeding — McKoy error — death sentence vacated There was prejudicial McKoy error in the sentencing phase of a first degree murder trial entitling a defendant who was sentenced to death to a new sentencing hearing where the court's instructions and the verdict form required the jury to find unanimously the existence of each of eleven submitted mitigating circumstances, two of which were statutory; the jury failed unanimously to find the existence of any of the mitigating circumstances submitted; and there was substantial evidence to support at least some, if not all, of the mitigating circumstances submitted. Am Jur 2d, Criminal Law 600; Trial 1113. <block_quote> Unanimity as to punishment in criminal case where jury can recommend lesser penalty. 1 ALR3d 1461.</block_quote>

1. Evidence and Witnesses 1008 (NCI4th) — hearsay — notice of intent to offer — objection waived A defendant in a murder prosecution waived any right to bring forward on appeal the adequacy and timeliness of a notice of the State's intent to offer hearsay testimony where defendant made no motion to continue based on insufficiency or untimeliness of the notice, did not assert that he was surprised by the evidence, did not argue this point when the judge asked if he wished to be heard further on his objection to the testimony, and admitted in an exchange with the judge that the notice was sufficient. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 804 (b)(5); N.C.R. App. P. 10(b)(1). Am Jur 2d, Evidence 493, 1103. 2. Evidence and Witnesses 1009, 1011 (NCI4th) — hearsay — findings sufficient The trial court did not err by admitting hearsay testimony in a prosecution arising from a murder where the court found, on the issue of probativeness, that the declarant, the victim, was unavailable, that the statements were evidence of a material<page_number>Page 274</page_number> fact, and that the statements were more probative on the fact than any other evidence which the State could procure through reasonable efforts. While the trial judge's findings of fact did not specifically provide that the evidence was not covered by any other exception found in Rule 804, the error was not prejudicial because the State offered the evidence under N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 804 (b)(5), did not argue at trial that any other exception applied, and defendant's attorney based his argument on the fact that this evidence was not covered under any hearsay exception. Am Jur 2d, Evidence 496. 3. Evidence and Witnesses 1009 (NCI4th) — hearsay — equivalent guarantees of trustworthiness The trial court did not err in a prosecution arising from a murder by finding and concluding that the victim's statements as contained in hearsay testimony possessed sufficient circumstantial guarantees of trustworthiness to be admitted under N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 804 (b)(5) where the declarant, the victim, was deceased and unavailable for cross-examination; the underlying events were clearly within the personal knowledge of the victim because they related to the immediate relationship between the victim and defendant; the statements were made to the victim's brother, who was living in the home and had heard numerous conversations consistent with the victim's statement to her brother about her relationship with defendant; and the victim did not recant her statements. Am Jur 2d, Evidence 496, 516. 4. Evidence and Witnesses 735 (NCI4th) — murder — victim's statements — hearsay — other evidence There was no prejudice in a prosecution arising from a murder where the court admitted testimony from the victim's brother about the victim's statements to defendant, but the evidence was already before the jury in substance. N.C.G.S. <cross_reference>15A-1443</cross_reference>(a). Am Jur 2d, Evidence 496, 516.<page_number>Page 275</page_number> 5. Evidence and Witnesses 1006 (NCI4th) — hearsay — residual exception — admissible The trial court did not err in a prosecution arising from a murder by admitting under N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 804 (b)(5) testimony regarding a statement by the victim to defendant. Am Jur 2d, Evidence 496, 516. 6. Evidence and Witnesses 735 (NCI4th) — murder — hearsay — no prejudice There was no prejudice in a prosecution arising from a murder where the court admitted testimony that the victim had told the witness that defendant had called the victim a name on the telephone. Assuming that the statement was offered to prove the truth of the matter asserted, there was no prejudice because the immediately preceding testimony was that defendant and the victim had been "cussing and fussing to each other," and the statement at issue merely fleshed out the witness's previous statement. Am Jur 2d, Evidence 496, 516. 7. Evidence and Witnesses 2987, 3018 (NCI4th) — prior convictions — defendant required to read from warrants There was no prejudicial error in a prosecution arising from a murder where the prosecutor was allowed to delve into the details of three prior convictions, two of them involving assaults against the victim, and defendant was required to read from the underlying arrest warrants. Defendant put his character in evidence by testifying in detail about himself and his relationship with the victim, painting a picture of himself as a level-headed, peaceful individual who consistently fended off verbal and physical attacks from the victim. It was therefore proper for the prosecutor to cross-examine defendant concerning this trait of character by eliciting details of the prior assaults. While the better practice is to limit cross-examination of prior instances of conduct to leading questions concerning the conduct itself, rather than requiring defendant to read to the jury the accusations contained in an arrest warrant, defendant here can show no harm because the same details could have been elicited through proper leading questions. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rules 609 (a), 404, and 405. Am Jur 2d, Witnesses 525, 526.<page_number>Page 276</page_number> 8. Evidence and Witnesses 2797 (NCI4th) — cross-examinations — insulting — discretion of court There was no abuse of discretion in a prosecution arising from a murder where the court permitted the prosecutor to repeatedly ask defendant on cross-examination why he could remember some details about the incident but could not remember shooting into the end of the trailer. Am Jur 2d, Witnesses 468, 471, 472. 9. Burglary and Unlawful Breakings 165 (NCI4th) — first degree burglary — misdemeanor breaking or entering not submitted The trial court did not err in a first degree burglary prosecution by refusing to submit to the jury a possible verdict of misdemeanor breaking or entering where there was no evidence to support misdemeanor breaking or entering. If the State's evidence is believed, defendant is guilty of first-degree burglary, and if defendant's evidence is believed, he is not guilty of burglary, misdemeanor breaking or entering, or any other crime. Am Jur 2d, Burglary 67; Trial 1432. 10. Kidnapping 1.2 (NCI3d) — felony murder — burglary — underlying kidnapping — instructions supported by evidence There was sufficient evidence in a prosecution for kidnapping and burglary to support instructions which permitted the jury to find that defendant committed the kidnapping for the purpose of terrorizing the victim or that defendant did not release the victim in a safe place where the evidence, viewed in the light most favorable to the State, shows that defendant forced his way into the trailer and forced the victim to accompany him against her will; one witness testified that from fifteen to thirty to forty-five minutes elapsed between the time the victim left the trailer and when the first shot was heard; the victim was hollering and screaming for the defendant to leave her alone as defendant faced the victim in the parking lot; some time elapsed before defendant fired the first shot; defendant cocked, breached, or loaded his gun and struck the victim in the mouth with the butt of the shotgun and then across the face with the barrel end, knocking her to the ground; defendant then fired a shotgun blast into the victim as he held her ankle in one hand and the shotgun in<page_number>Page 277</page_number> the other; and his actions indicated a conscious disregard for the victim and her safety rather than a conscious act to assure that his victim was released in a safe place in that, after firing a shotgun blast into her body at close range, he walked to his vehicle, fired a shell into the trailer, and drove off, shouting, "You can come and get her now. She's yours." Am Jur 2d, Abduction and Kidnapping 32; Burglary 45. 11. Homicide 4.2 (NCI3d) — felony murder — kidnapping — murder — no error The trial court was not required in a felony murder prosecution to instruct the jury that it must find the kidnapping to be separate and apart from the murder where the facts of the case do not raise the possibility that defendant could be convicted twice for the same act. <block_quote> Am Jur 2d, Abduction and Kidnapping 9, 10, 28; Criminal Law 266-268, 277, 279; Homicide 183, 190, 482.</block_quote> 12. Homicide 25.2 (NCI3d) — first degree murder — premeditation and deliberation — evidence sufficient There was sufficient evidence to support a jury instruction on grossly excessive force or infliction of lethal wounds as circumstances from which premeditation and deliberation could be inferred in a first degree murder prosecution where there was testimony that defendant struck the victim with the butt of a shotgun and then struck her in the face with the barrel end, knocking her to the ground; defendant then grabbed her ankle with his left hand; and the gun discharged. Am Jur 2d, Homicide 439. 13. Criminal Law 751 (NCI4th) — reasonable doubt — highest legal aim instruction — not confusing There was no possibility that the trial judge confused jurors concerning the reasonable doubt standard where the judge gave the jurors the highest legal aim pattern instruction, but also repeated the reasonable doubt instruction throughout the jury charge. Although defendant argued that the instruction improperly shifted the focus from determining guilt beyond a reasonable doubt to determining the truth, when construed as a whole no reasonable juror could have been misled. Am Jur 2d, Homicide 510.<page_number>Page 278</page_number> 14. Indictment and Warrant 7 (NCI3d) — burglary — joinder with first degree murder — indictment waivable Defendant could properly waive indictment as to a noncapital felony of first degree burglary joined with first degree murder where he was first indicted for first degree burglary with the intent to commit murder alleged as the only felonious intent; the prosecutor subsequently filed a superseding information in the burglary charge alleging the additional felonious intent of kidnapping; defendant signed a waiver of indictment; and the court instructed the jury on the burglary charge only on the theory that defendant intended to commit kidnapping. Joinder of the burglary charge with the capital crime of murder, for which indictment may not be waived, did not transform the burglary charge into a capital case as that term is used in N.C.G.S. <cross_reference>15A-642</cross_reference>(b). Am Jur 2d, Indictments and Informations 221, 223, 301.

1. Evidence and Witnesses 264 (NCI4th) — "first aggressor" exception — peacefulness of victim — plain meaning The plain meaning of the "first aggressor" exception of Rule of Evidence 404(a)(2) is abundantly clear: if a defendant presents evidence that the victim was the first aggressor in the confrontation which led to the victim's death, the State can offer evidence of the victim's peacefulness. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 404(a)(2). Am Jur 2d, Evidence 339-342; Homicide 308, 309. <block_quote> Right of prosecution, in homicide case, to introduce evidence in rebuttal to show good, quiet, and peaceable character of deceased. 34 ALR2d 451.</block_quote> 2. Evidence and Witnesses 264 (NCI4th) — victim's forcing of oral sex — first aggressor — evidence of victim's peacefulness Defendant's evidence that a murder victim forced him at gunpoint to perform oral sex triggered the "first aggressor" exception of Rule 404(a)(2) so that the State could introduce evidence that the victim was a peaceful man.<page_number>Page 348</page_number> Am Jur 2d, Evidence 339-342; Homicide 308, 309. <block_quote> Right of prosecution, in homicide case, to introduce evidence in rebuttal to show good, quiet, and peaceable character of deceased. 34 ALR2d 451.</block_quote> 3. Evidence and Witnesses 264 (NCI4th) — peacefulness of victim — first aggressor evidence as prerequisite The State cannot introduce evidence of a murder victim's peacefulness until after defendant has put forward evidence that the victim was the first aggressor. Therefore, the trial court erred by allowing the State to introduce evidence in its case-in-chief that a murder victim had a reputation for peacefulness, but defendant was not prejudiced by this error where defendant's entire defense was based on his testimony that the victim was the aggressor, and the State thus would have properly been allowed during rebuttal to introduce its evidence that the victim had a reputation for peacefulness. Am Jur 2d, Evidence 339-342; Homicide 308, 309. <block_quote> Right of prosecution, in homicide case, to introduce evidence in rebuttal to show good, quiet, and peaceable character of deceased. 34 ALR2d 451.</block_quote> 4. Evidence and Witnesses 263 (NCI4th) — modification of toothbrush in jail — irrelevancy — improper character evidence — admission as harmless error A toothbrush with a piece of metal attached to the end and testimony by a prison guard that this modified toothbrush was made by defendant while in jail awaiting trial and would be considered a weapon under prison regulations should have been excluded as irrelevant under Rule of Evidence 402 or as improper character evidence under Rule of Evidence 404. However, defendant failed to show that he was prejudiced by the admission of this evidence. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rules 402 and 404. <block_quote> Am Jur 2d, Evidence 339-341; Homicide 298, 299; Witnesses 564.</block_quote> 5. Robbery 4.3 (NCI3d) — armed robbery — sufficiency of evidence — property not taken as afterthought The State's evidence did not show that defendant took the victim's property only as an "afterthought" following the<page_number>Page 349</page_number> victim's death but was sufficient to support defendant's conviction of armed robbery where it tended to show that defendant was short on cash; immediately after passing the victim's house, he stated that the victim owed him money and he was going after it; the victim was struck more than thirty times with an ax that was kept outside his house in the carport; the house was ransacked; and items belonging to the victim were stolen. Furthermore, it was immaterial whether the intent was formed before or after force was used upon the victim provided the theft and force were aspects of a single transaction. Am Jur 2d, Robbery 14, 16, 19, 23. 6. Robbery 4.3 (NCI3d) — armed robbery — conviction not based on taking of own property There was no possibility that defendant was convicted of armed robbery on the basis of a taking of his own property because (1) there was evidence that defendant had pawned his television set with the victim and the set was not found at the victim's house, (2) the prosecutor stated during his closing argument that he believed defendant had taken the television from the house but had hidden it when it became too heavy to carry, and (3) the trial judge used the word "property" in the instructions to describe the items defendant was accused of taking, where the prosecutor was merely responding to defendant's contention that someone else had ransacked the victim's house and stolen items which defendant denied taking; the prosecutor specifically mentioned items which defendant admitted taking, i.e., a revolver and watch belonging to the victim, when discussing with the jury the elements necessary to prove armed robbery; the prosecutor also told the jury that a defendant can only be convicted of armed robbery for taking property to which he is not entitled; and the trial judge's instructions were replete with references to the fact that defendant could not be convicted of armed robbery unless he took property "that he was not entitled to take." Am Jur 2d, Robbery 16, 19. 7. Evidence and Witnesses 3098 (NCI4th); Extradition 1 (NCI3d) — resistance of extradition — cross-examination of defendant — admissibility for impeachment The prosecutor's cross-examination of defendant as to whether he had fought extradition from Pennsylvania from<page_number>Page 350</page_number> December 1988 until March 1989 was properly permitted to impeach defendant's testimony concerning the reason for his flight to Pennsylvania and did not burden defendant's due process right to resist extradition where defendant testified that he went to Pennsylvania only to resettle his family and not to evade arrest for murder and armed robbery, and defendant first broached the subject of his extradition when he testified on direct examination that he had an extradition hearing in Philadelphia with the assistance of counsel. Am Jur 2d, Evidence 280-282, 1128. 8. Homicide 25.2 (NCI3d) — premeditation and deliberation — lack of provocation — instruction not plain error Assuming arguendo that there was error in the trial court's instruction, to which defendant failed to object at trial, that the jury could infer premeditation and deliberation from, among other things, "the lack of provocation by the victim," defendant failed to meet the heavy burden placed on him under the plain error rule to show that, absent the error, the jury probably would have reached a different verdict. Am Jur 2d, Homicide 498, 501.

1. Judges 8 (NCI3d) — appellate justices and judges — retirement at age seventy-two — constitutionality of statute The statute requiring appellate division justices and judges to retire at age seventy-two, N.C.G.S. <cross_reference>7A-4.20</cross_reference>, does not unconstitutionally nullify the right of a justice or judge to the eight-year term provided by Art. IV, 16 of the N.C. Constitution, since (1) the 1972 amendment to Art. IV, 8 of the N.C. Constitution, providing that the General Assembly shall prescribe maximum age limits "for service" as a justice or judge, evinces an intent to empower the legislature to render particular justices or judges ineligible for active service because of age notwithstanding that time may remain in their terms of office; and (2) N.C.G.S. <cross_reference>7A-4.20</cross_reference> was enacted by the General Assembly to become effective only if the 1972 amendment to Art. IV, 8 was approved by the people, and the ratification of this amendment by the people with such knowledge indicates the intent of the people to empower the legislature to enact this statute notwithstanding the limitations which otherwise would have been imposed on the legislature by the eight-year term provision in Art. IV, 16. <block_quote> Am Jur 2d, Judges 17; Public Officers and Employees 181, 182.</block_quote> <block_quote> Mandatory retirement of public officer or employee based on age. 81 ALR3d 811.</block_quote> 2. Judges 8 (NCI3d) — appellate justices and judges — retirement at age seventy-two — constitutionality of statute The statute requiring appellate justices and judges to retire at age seventy-two, N.C.G.S. <cross_reference>7A-4.20</cross_reference>, does not violate the "equal right to vote" or a fundamental right to candidacy under the equal protection clause of Art. I, 19 of the N.C. Constitution since the statute was not only authorized but mandated by the people when they ratified the 1972 amendment to Art. IV, 8 of the N.C. Constitution, and the statute thus did not violate other more general, substantive provisions<page_number>Page 413</page_number> of the very constitution which, in Art. IV, 8, expressly and specifically mandated its enactment. <block_quote> Am Jur 2d, Judges 17; Public Officers and Employees 181, 182.</block_quote> <block_quote> Mandatory retirement of public officer or employee based on age. 81 ALR3d 811.</block_quote>

1. Criminal Law 460 (NCI4th) — murder — closing argument — permissible inference The prosecutor's argument in a murder prosecution that the deceased was afraid of the defendant, that she had been the victim of physical threats and torture, and on one occasion had been beaten with a shoe was a proper argument where there was testimony that the defendant had hit the deceased with a shoe and had beaten and threatened her. This would support an inference that she was afraid of him. Am Jur 2d, Homicide 463; Trial 260. 2. Criminal Law 460 (NCI4th) — murder — closing argument — not grossly improper A prosecutor's closing argument in a murder prosecution was not so grossly improper as to require the trial court to intervene ex mero motu where the prosecutor argued that the deceased was working to get enough money to have the lights turned back on and that defendant blew her head off.<page_number>Page 420</page_number> There was evidence that defendant and his wife had argued over the light bill, but no evidence that the electricity had been turned off, and there was evidence that defendant shot her in the head, but no evidence that he shot her head off. Am Jur 2d, Homicide 463; Trial 260. 3. Criminal Law 460 (NCI4th) — murder — closing argument — deceased's feelings The prosecutor's closing argument in a murder prosecution was not so grossly improper as to require intervention ex mero motu where the prosecutor argued that the deceased had said "I'd rather be dead than live another night in that house with him" after the court had excluded testimony to that effect at trial. The prosecuting attorney may have exaggerated the deceased's feelings, but it is a reasonable inference that she did not want to live any longer with the defendant. Am Jur 2d, Homicide 463; Trial 253, 260. 4. Criminal Law 468 (NCI4th) — murder — closing argument — attitude of defendant toward victim The prosecutor's argument in a murder prosecution that defendant had for the victim a possessive, clinging, hating love which caused him to kill her was proper. Am Jur 2d, Homicide 463; Trial 218. 5. Criminal Law 460 (NCI4th) — murder — closing argument — defendant's self-inflicted wound The prosecutor properly argued in a murder trial that defendant did not intend to kill himself when he shot himself in the stomach after shooting the victim in the head, and that he shot himself and wrote a letter to create sympathy for himself. There was testimony by a witness that she saw defendant pointing the pistol towards the area of his stomach, and the evidence was undisputed that the wound of the defendant's wife was fatal and that the wound of defendant was not fatal. This would support the inference that defendant did not intend to kill himself, and, if that be the case, it could be inferred that the letter was written to create sympathy. Am Jur 2d, Homicide 463; Trial 260.<page_number>Page 421</page_number>

1. State 1.2 (NCI3d) — Public Records Law — SBI reports of Poole Commission When the SBI submitted its investigative reports to the Poole Commission, which had been appointed by the president of the University of North Carolina system of higher education to investigate and report on alleged improprieties in the men's basketball program at N.C. State University, the reports lost<page_number>Page 466</page_number> their N.C.G.S. <cross_reference>114-15</cross_reference> exemption from the Public Records Law and became Commission records subject to disclosure under the Public Records Law to the same extent as other Commission records. <block_quote> Am Jur 2d, Records and Recording Laws 46.15, 46.16, 46.19.</block_quote> 2. Appeal and Error 147 (NCI4th) — preserving question for review Defendants properly preserved for appeal the issue of whether SBI reports to the Poole Commission were exempt from public disclosure under N.C.G.S. <cross_reference>126-22</cross_reference>, which provides that certain "personnel file information" gathered by state agencies concerning their employees or applicants for employment is exempt from the Public Records Law, where defendants in their answer asserted a sixth defense that "the Commission's records contain confidential personnel records protected from public inspection under N.C. Gen. Stat. <cross_reference>126-22</cross_reference>, " and defendants assigned error to the trial court's failure to find and conclude that information from state employee personnel records should be excluded from its disclosure order. N.C. R. App. P. 10(c)(1). Am Jur 2d, Appeal and Error 545, 600. 3. State 1.2 (NCI3d) — Public Records Law — personnel file exception In order for personnel information about state employees or applicants for employment to be exempted from disclosure under the Public Records Law by N.C.G.S. <cross_reference>126-22</cross_reference>, it must meet two requirements: (1) it must have been gathered by an individual's employer (including the Office of State Personnel) or considered in an individual's application for employment; and (2) the information must relate to at least one of the enumerated activities by the employer with respect to the individual employee or applicant for employment. Am Jur 2d, Records and Recording Laws 46.19. <block_quote> What constitutes personal matters exempt from disclosure by invasion of privacy exemption under state freedom of information act. 26 ALR4th 666.</block_quote><page_number>Page 467</page_number> 4. State 1.2 (NCI3d) — Public Records Law — personnel information given to SBI and Poole Commission Personnel information about state employees first gathered by the employing state agency or the Office of State Personnel and turned over to the SBI and the Poole Commission during the investigation of the men's basketball program at N.C. State University remains protected from disclosure under the Public Records Law by N.C.G.S. <cross_reference>126-22</cross_reference> because of the language "wherever located and in whatever form" in that statute. Am Jur 2d, Records and Recording Laws 46.19. 5. State 1.2 (NCI3d) — Public Records Law — agency not subject to Open Meetings Law — no exemption for minutes There is no exemption from the Public Records Law for the minutes of meetings of an agency not subject to the Open Meetings Law. <block_quote> Am Jur 2d, Administrative Law 229; Records and Recording Laws 46.15, 46.19.</block_quote> 6. State 1.2 (NCI3d) — Public Records Law — minutes of executive sessions — exception in Open Meetings Law — inapplicable to Poole Commission Minutes of the Poole Commission's meetings were not excepted from the Public Records Law by the provision of the Open Meetings Law permitting minutes of an executive session to be withheld from public inspection if such inspection "would frustrate the purpose of the executive session," N.C.G.S. <cross_reference>143-318.11</cross_reference>(d), because the Commission was not a "public body" subject to the Open Meetings Law. Furthermore, public inspection of the minutes will not frustrate the Commission's proceedings where, at the time plaintiffs sought the minutes, the Commission had completed its investigation of the men's basketball program at N.C. State University and had reported to the UNC system's chief executive officer; the Commission's findings and recommendations had been relayed to the UNC Board of Governors; and no further action or disposition by any higher ranking university officer was pending. <block_quote> Am Jur 2d, Administrative Law 229; Records and Recording Laws 46.15, 46.19.</block_quote><page_number>Page 468</page_number> 7. State 1.2 (NCI3d) — Public Meetings Law — attorney-client privilege Only those portions of the minutes of the Poole Commission's meetings revealing written communications from counsel to the Commission are excepted from disclosure under the Public Records Law attorney-client privilege provided in N.C.G.S. <cross_reference>132-1.1</cross_reference>. Am Jur 2d, Records and Recording Laws 46.19. 8. State 1.2 (NCI3d) — Public Records Law — minutes of Poole Commission — personnel records exception inapplicable Minutes of meetings of the Poole Commission were not exempt from disclosure as public records by N.C.G.S. <cross_reference>126-22</cross_reference>, the statute exempting from the Public Records Law certain personnel information gathered by state agencies concerning their employees or applicants for employment, because the Commission was not the employer of any state employees questioned or mentioned in the meeting minutes. Am Jur 2d, Records and Recording Laws 46.19. <block_quote> What constitutes personal matters exempt from disclosure by invasion of privacy exemption under state freedom of information act. 26 ALR4th 666.</block_quote> 9. State 1.2 (NCI3d) — Public Records Law — no deliberative process privilege or preliminary draft exceptions No "deliberative process privilege" exception to the Public Records Law will be recognized as a matter of public policy to exempt from public inspection preliminary draft reports prepared by members of the Poole Commission and submitted to the president of the UNC system of higher education. Nor is it necessary to infer a "preliminary draft" exception to the Public Records Law to prevent the legislature from intruding into the decision-making processes of other government branches in violation of Art. I, 6 of the N.C. Constitution. Am Jur 2d, Records and Recording Laws 46.15. <block_quote> What are "records" of agency which must be made available under state freedom of information act. 27 ALR4th 680.</block_quote><page_number>Page 469</page_number> 10. Pleadings 34 (NCI3d) — Public Records Law — Poole Commission records — denial of amendment to add Attorney General as defendant The trial court did not abuse its discretion in the denial of plaintiffs' motion to amend their complaint to add the Attorney General as a defendant in this action under the Public Records Law to compel the disclosure of documents made or received by the Poole Commission in its investigation of the men's basketball program at N.C. State University where plaintiffs moved to amend three months after obtaining new information from deposition testimony and only three days before the action was scheduled for hearing; plaintiffs were not prejudiced because they prevailed in their action to enforce the Public Records Law; and plaintiffs' contention that, had the motion been allowed, they could have obtained an injunction prohibiting the Attorney General from further assigning the SBI to conduct an unauthorized investigation for the Poole Commission was speculative at best. <block_quote> Am Jur 2d, Parties 182, 183, 190, 200; Records and Recording Laws 46.15.</block_quote>

1. Criminal Law 616 (NCI4th) — motion for dismissal — substantial evidence test On a defendant's motion for dismissal, the trial court must 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. What constitutes substantial evidence is a question of law for the court. Substantial<page_number>Page 558</page_number> evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Am Jur 2d, Criminal Law 512. 2. Criminal Law 607 (NCI4th) — motion to dismiss — consideration of evidence In ruling on a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference and intendment that can be drawn therefrom. Any contradictions or discrepancies in the evidence are for the jury to resolve and do not warrant dismissal. Am Jur 2d, Criminal Law 512. 3. Homicide 4 (NCI3d) — first degree murder defined Murder in the first degree is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation. Am Jur 2d, Homicide 45, <cross_reference>50-52</cross_reference>. 4. Homicide 4.3 (NCI3d) — premeditation and deliberation defined Premeditation means the perpetrator thought out the act beforehand for some period of time, however short, but no particular amount of time is necessary. Deliberation means the perpetrator carried out an intent to kill in a cool state of blood and not under the influence of a violent passion or sufficient legal provocation. In this context, the term "cool state of blood" does not mean the perpetrator was devoid of passion or emotion. Am Jur 2d, Homicide 52. 5. Homicide 18 (NCI3d) — premeditation and deliberation — circumstances considered Some of the circumstances from which premeditation and deliberation may be implied are (1) absence of provocation on the part of the deceased, (2) the statements and conduct of the defendant before and after the killing, (3) threats and declarations of the defendant before and during the occurrence giving rise to the death of the deceased, (4) ill will or previous difficulties between the parties, (5) the dealing of lethal blows<page_number>Page 559</page_number> after the deceased has been felled and rendered helpless, and (7) the nature and number of the victim's wounds. Am Jur 2d, Homicide 52. 6. Homicide 21.5 (NCI3d) — first degree murder — premeditation and deliberation — sufficiency of evidence The State's evidence was sufficient to support defendant's conviction of first degree murder on the theory of premeditation and deliberation where it tended to show that defendant broke and entered the victim's house; in the course of rummaging through the victim's belongings, defendant found a .22 caliber revolver and set it out within his reach; when the victim arrived home early from work, defendant picked up the revolver, came out of the bedroom, moved through the hall toward the front door, and fired six shots into the victim's body; and defendant admitted in his statements to officers that he kept shooting at the deceased as he fell. Am Jur 2d, Homicide 439. 7. Robbery 1.1 (NCI3d) — armed robbery — threat or use of deadly weapon — continuous transaction To be found guilty of robbery with a dangerous weapon, the defendant's threatened use or use of a dangerous weapon must precede or be concomitant with the taking, or be so joined by time and circumstance as to be part of one continuous transaction. Where a continuous transaction occurs, the temporal order of the threat or use of a dangerous weapon and the taking is immaterial. Am Jur 2d, Robbery 5. 8. Robbery 4.3 (NCI3d) — armed robbery — sufficiency of evidence The State introduced substantial evidence of defendant's guilt of robbery with a dangerous weapon where such evidence tended to show that defendant broke into the victim's residence and collected a number of items such as a pair of binoculars and four long guns, normally stored under a bed, which he placed near the front door on a chair in preparation for their removal; the victim's gold wedding band and a silver-coated penny which belonged to the victim were discovered in a pillowcase in the possession of defendant after his arrest; and in the process of escaping from the victim's home and removing<page_number>Page 560</page_number> these items from the victim's possession, defendant fatally shot the victim with a .22 caliber handgun. This evidence was sufficient to support a reasonable finding that defendant's use of the gun was so joined by time and circumstances to the taking as to make the use of the gun and the taking parts of one continuous transaction. Am Jur 2d, Robbery 5. 9. Criminal Law 468 (NCI4th) — first degree murder — jury argument — request for conviction based on premeditation and deliberation The prosecutor's jury arguments in this first degree murder case that he would prefer that the jury find defendant not guilty and turn him loose rather than find him guilty of second degree murder, that he did not want the jury "to have to come down to any watered-down theory like felony murder theory," and that the jury should not find defendant guilty of "less than cold-blooded premeditated deliberated murder" were not inflammatory but were proper arguments urging the jury to return a conviction for first degree murder based on premeditation and deliberation. In any event, they were not so grossly improper as to require the trial court to intervene ex mero motu. Am Jur 2d, Homicide 463, 464.

1. Criminal Law 477 (NCI4th) — jury misconduct — adequately investigated The trial court adequately investigated a report of jury misconduct where it was alleged that a juror who was eventually seated had stated that defendant deserved the death penalty; both the trial court and defendant questioned the potential juror to whom the statement was allegedly made; defense counsel appeared satisfied with the investigation and<page_number>Page 580</page_number> himself recognized that the allegation serving as the basis of the inquiry was double hearsay; the defendant made no motion for further investigation; and the trial court's findings are supported by substantial evidence and support its conclusions. Am Jur 2d, Trial 1637-1640, 1646. 2. Burglary and Unlawful Breakings 101 (NCI4th) — breaking or entering with intent to commit murder — evidence of intent sufficient The evidence was sufficient to support a guilty verdict for breaking or entering with the intent to commit murder where there was substantial evidence of defendant's intent to murder the victim at the time of the breaking or entering in that defendant shot and killed the victim. The jury may find the defendant's intent at the time of the breaking or entering from his subsequent acts. Am Jur 2d, Burglary 52. 3. Burglary and Unlawful Breakings 99 (NCI4th) — breaking or entering — lack of consent — evidence sufficient The trial court did not err by denying defendant's motion to dismiss a felony murder charge which was based on breaking or entering with felonious intent where defendant contended that the State failed to show that he acted without the consent of the owner when he entered the residence. The evidence tended to show that defendant broke down the locked front door to gain entry into the house, and that evidence alone was sufficient to support a finding of a lack of consent. However, the evidence further showed that defendant's estranged wife, who was living in the house, specifically told defendant that she did not want to talk to him and that she did not open the locked door. Although defendant speculated that the owner may have given defendant consent as she left the scene and defendant arrived, no evidence was presented to support that argument and the State need not disprove every possibility that could exonerate defendant. Am Jur 2d, Burglary 64.5; Homicide 35, 46, 72.

1. Insurance 149 (NCI3d) — homeowners insurance — exclusion for expected or intended bodily injury In order for the exclusion in a homeowners policy for bodily injury which is "expected or intended by the insured" to apply, it is insufficient for the insurer to show only that the act was intentional; rather, the insurer must prove that the injury itself was expected or intended by the insured. Therefore, the exclusion did not apply where the insured intentionally pushed a co-worker on the shoulder, causing her to fall and sustain injuries, and competent evidence supported the trial court's finding that the insured did not intend to cause bodily injury to the co-worker. Am Jur 2d, Insurance 708, 709. <block_quote> Construction and application of provision of liability insurance policy expressly excluding injuries intended or expected by insured. 31 ALR4th 957.</block_quote> 2. Insurance 149 (NCI3d) — homeowners insurance — assault and battery action — intent to injure not inherent — exclusion inapplicable An allegation of intent to injure was not inherent in the injured party's assault and battery tort complaint against the insured so as to render applicable the "expected or intended" bodily injury exclusion in the insured's homeowners policy. Am Jur 2d, Insurance 708, 709.<page_number>Page 698</page_number> <block_quote> Construction and application of provision of liability insurance policy expressly excluding injuries intended or expected by insured. 31 ALR4th 957.</block_quote> 3. Insurance 45, 149 (NCI3d) — homeowners insurance — accident — injury from intentional act Where the term "accident" is not specifically defined in an insurance policy, that term includes injury resulting from an intentional act if the injury is not intentional or substantially certain to be the result of the intentional act. Therefore, the trial court correctly concluded that the insured's liability, if any, for an unintended injury to a co-worker resulting from the insured's intentional act of pushing the co-worker was covered under the insured's homeowners policy as an "occurrence" or "accident." Am Jur 2d, Insurance 708, 709. <block_quote> Liability insurance: assault as an "accident," or injuries therefrom as "accidentally" sustained, within coverage clause. 72 ALR3d 1090.</block_quote> 4. Insurance 149 (NCI3d) — homeowners insurance — business pursuits exclusion — exception — ambiguity — construction The "business pursuits" exclusion in a homeowners policy and the exception to that exclusion for "activities which are usual to non-business pursuits" are ambiguous, and these ambiguities must be construed against the insurance company and in favor of coverage. Am Jur 2d, Insurance 727. <block_quote> Construction and application of "business pursuits" exclusion provision in general liability policy. 48 ALR3d 1096.</block_quote> 5. Insurance 149 (NCI3d) — homeowners insurance — business pursuits exclusion — pushing of co-worker — exception for usual nonbusiness activities Assuming that the insured was engaged in a "business pursuit" at the time he pushed a co-worker within the meaning of the "business pursuits" exclusion of a homeowners policy, the insured's act of pushing the co-worker came within the exception to the "business pursuits" exclusion for "activities which are usual to non-business pursuits."<page_number>Page 699</page_number> Am Jur 2d, Insurance 727. <block_quote> Construction and application of "business pursuits" exclusion provision in general liability policy. 48 ALR3d 1096.</block_quote>

1. Evidence and Witnesses 3023 (NCI4th) — impeachment of witness — drug habit, suicide attempts, psychiatric history — Rule 608(b) inapplicable Rule of Evidence 608(b), which governs the admissibility of evidence of specific instances of conduct bearing on truthfulness or untruthfulness, does not govern the admissibility of evidence of the drug habit, suicide attempts and psychiatric history of the State's chief witness in a first degree murder case. Am Jur 2d, Witnesses 540, 546, 563. 2. Evidence and Witnesses 2947, 2948 (NCI4th) — State's chief witness — impeachment — drug habit, suicide attempts, psychiatric history The trial court erred in precluding defendant from cross-examining the State's chief witness in this first degree murder trial about his chronic drug habit, suicide attempts and psychiatric history because this evidence was admissible under Rule of Evidence 611(b) to impeach the witness's ability to perceive, retain, or narrate even though the suicide attempts and psychiatric counselling occurred more than two years prior to the victim's death. Furthermore, defendant was prejudiced<page_number>Page 712</page_number> by the exclusion of this evidence where the testimony of this witness was the only evidence directly linking defendant to the murder, and impeachment of the witness was particularly critical in light of the testimony of defendant's witnesses that contradicted this witness's estimation of the time of the victim's death and his claim that defendant was with him when the victim was killed. Am Jur 2d, Witnesses 540, 546. <block_quote> Cross-examination of witness as to his mental state or condition, to impeach competency or credibility. 44 ALR3d 1203.</block_quote>

Principal and Surety 10 (NCI3d) — laborers' and materialmen's lien — bond discharging lien — accrual of action against surety The statute of limitations begins to run in favor of a corporate surety which has filed a bond discharging a lien under N.C.G.S. <cross_reference>44A-16</cross_reference>(6) when final judgment is entered in favor of the lien claimant, not when the surety files the bond discharging the lien. The primary purpose of N.C.G.S. <cross_reference>44A-16</cross_reference>(6) is to protect the landowner, not the lien claimant, who is already protected by virtue of the lien on the property. Because the bond acts as a substitute for the land, the lien<page_number>Page 756</page_number> claimant's right to make demand upon the bond accrues at the same time that he would have been able to enforce the lien against the land, i.e., at final judgment in his favor. Am Jur 2d, Suretyship 236, 237.

1. Constitutional Law 86 (NCI4th) — 1983 claims — UNC, ASU and university officials — official capacities — damages claims barred Plaintiff was barred from seeking damages under <cross_reference>42 U.S.C. § 1983</cross_reference> from the University of North Carolina, Appalachian State University, the president of the University of North Carolina in his official capacity, and the chancellor and a vice chancellor of Appalachian State University in their official capacities because neither a state nor its officials acting in their official capacities are "persons" under 1983 when the remedy sought is monetary damages. Am Jur 2d, Civil Rights 17, 264.<page_number>Page 762</page_number> <block_quote> Public institutions of higher learning as "persons" subject to suit under <cross_reference>42 USCS sec. 1983</cross_reference>. 65 ALR Fed 490.</block_quote> 2. Constitutional Law 86 (NCI4th) — 1983 claims — UNC, ASU and university officials — official capacities — injunctive relief permissible Plaintiff could properly bring actions under <cross_reference>42 U.S.C. § 1983</cross_reference> for injunctive relief against UNC, ASU, and the individual defendants in their official capacities because state institutions or employees acting in their official capacities are "persons" reachable under 1983 when sued for prospective equitable relief. Am Jur 2d, Civil Rights 17, 264. <block_quote> Public institutions of higher learning as "persons" subject to suit under <cross_reference>42 USCS sec. 1983</cross_reference>. 65 ALR Fed 490.</block_quote> 3. Constitutional Law 86 (NCI4th) — 1983 claims — official capacities — sovereign and qualified immunity inapplicable Sovereign immunity alleged under state law is not a permissible defense to 1983 actions. Nor is the defense of qualified immunity available under 1983 to one sued in his official capacity. Insofar as Truesdale v. University of North Carolina, <cross_reference>91 N.C. App. 186</cross_reference>, <cross_reference>371 S.E.2d 503</cross_reference>, states that 1983 claims against state institutions are barred by the doctrine of sovereign immunity, it is overruled. Am Jur 2d, Constitutional Law 283, 713, 717. 4. Constitutional Law 86 (NCI4th) — 1983 claims — individual capacities — damages — qualified immunity State government officials may be sued in their individual capacities for damages under <cross_reference>42 U.S.C. § 1983</cross_reference>, but officials sued as individuals may raise a defense of qualified immunity. Am Jur 2d, Civil Rights 268, 269. 5. Constitutional Law 86 (NCI4th) — 1983 claims — individual capacities — objective test for qualified immunity — motivation State officials sued for constitutional violations under <cross_reference>42 U.S.C. § 1983</cross_reference> will be protected from liability by qualified immunity where their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Where the existence of a<page_number>Page 763</page_number> constitutional violation depends on proof of motivation, proof of the official's intent is required to determine whether the qualified immunity defense is appropriate. Am Jur 2d, Civil Rights 268, 269. 6. Constitutional Law 115 (NCI4th) — public official — free speech limitations A public employee's right to free speech is limited by the government's need to preserve efficient governmental functions. Furthermore, only speech on a matter of "public concern" is constitutionally protected, and in determining whether speech fits in this category, the court must examine the content, form and context of the public employee's speech. Am Jur 2d, Constitutional Law 496, 497. 7. Constitutional Law 115 (NCI4th) — free speech — relocation of Appalachian Collection — matter of public concern Speech by plaintiff, the Dean of Learning Resources at ASU, concerning the relocation of the Appalachian Collection at ASU addressed a matter of public concern for free speech purposes. Am Jur 2d, Constitutional Law 496, 497. 8. Constitutional Law 115 (NCI4th) — relocation of Appalachian Collection — free speech right of plaintiff Plaintiff, the Dean of Learning Resources at ASU, had a constitutionally protected right to speak out in 1984 about a vice chancellor's directive for relocation of the Appalachian Collection which would separate the artifacts from the written materials and to propose an alternate plan which would keep the entire Collection intact when it was moved, since such speech did not impede plaintiff's duties or interfere with the regular operation of ASU; the speech did not affect the vice chancellor's decision to relocate the Appalachian Collection and its danger to the organization was de minimus; and plaintiff's interest in speaking out on this public issue thus outweighed any negative effect it might have had on the efficient functioning of ASU. Am Jur 2d, Constitutional Law 496, 497.<page_number>Page 764</page_number> 9. Constitutional Law 115 (NCI4th) — 1983 claim — ASU vice chancellor — demotion of plaintiff — free speech — evidence of motive — summary judgment improper In plaintiff's <cross_reference>42 U.S.C. § 1983</cross_reference> action against a vice chancellor of ASU in his individual capacity based on plaintiff's claim that his right to free speech was violated when he was removed as Dean of Learning Resources of ASU because of statements he made at a staff meeting concerning the vice chancellor's plan for relocation of the Appalachian Collection, plaintiff presented sufficient evidence of improper motive to raise a material question as to whether a reasonable vice chancellor would have believed that demoting plaintiff was lawful where the vice chancellor's evidence indicates that his motive for demoting plaintiff was to promote discipline and efficient administration and to punish insubordination, but plaintiff presented specific evidence indicating that defendant's motive was to stifle debate about where to relocate the Appalachian Collection, to carry out his decision to split the Collection quickly, and to punish plaintiff. Therefore, defendant vice chancellor's motion for summary judgment based upon the defense of qualified immunity was properly denied by the trial judge. Am Jur 2d, Civil Rights 19, 20. 10. Constitutional Law 86 (NCI4th) — 1983 claims — UNC, ASU and university officials — summary judgment proper Summary judgment should have been entered in favor of UNC, ASU, the president of UNC, and the chancellor of ASU on all of plaintiff's <cross_reference>42 U.S.C. § 1983</cross_reference> claims based on his removal as the Dean of Learning Resources at ASU where plaintiff failed to present a forecast of evidence as to any improper action or motive by these defendants. Am Jur 2d, Civil Rights 287. 11. Constitutional Law 115 (NCI4th) — free speech violation by state official — direct claim under N.C. Constitution A plaintiff has a direct cause of action under the N.C. Constitution against state officials in their official capacities for alleged violations of plaintiff's right of free speech, and the common law will provide the appropriate remedy for the adequate redress of a violation of that right. Therefore,<page_number>Page 765</page_number> plaintiff had a direct cause of action under the N.C. Constitution against a vice chancellor of ASU for an alleged violation of his free speech rights based on his removal as Dean of Learning Resources at ASU. Am Jur 2d, Civil Rights 261; Constitutional Law 496. 12. Constitutional Law 115 (NCI4th); Courts 3 (NCI4th) — violation of free speech right — common law remedy — limitations on Judiciary It will be a matter for the trial judge to craft the necessary relief for a violation of a plaintiff's free speech right under the N.C. Constitution. When called upon to exercise its inherent constitutional power to fashion a common law remedy for a violation of a particular constitutional right, however, the judiciary must recognize two critical limitations: (1) it must bow to established claims and remedies where those provide an alternative to the extraordinary exercise of its inherent constitutional power, and (2) in exercising that power, it must minimize the encroachment upon other branches of government — in appearance and in fact — by seeking the least intrusive remedy available and necessary to right the wrong. Am Jur 2d, Constitutional Law 316. 13. Constitutional Law 115 (NCI4th); State 4.2 (NCI3d) — free speech violation — sovereign immunity inapplicable The doctrine of sovereign immunity is inapplicable to a plaintiff's claim for violation of his free speech rights or other rights protected by the Declaration of Rights of the N.C. Constitution. When there is a clash between these constitutional rights and judge-made sovereign immunity, the constitutional rights must prevail. Art. I, 14 of the N.C. Constitution. Am Jur 2d, Civil Rights 261; Constitutional Law 496. 14. Constitutional Law 115 (NCI4th) — free speech violation — no direct claim under N.C. Constitution against individual A plaintiff has no direct cause of action for monetary damages under the N.C. Constitution against persons sued in their individual capacities for violations of plaintiff's free speech rights. Am Jur 2d, Civil Rights 261; Constitutional Law 496.<page_number>Page 766</page_number> 15. Constitutional Law 115 (NCI4th) — free speech claims under N.C. Constitution — UNC, ASU and university officials — summary judgment proper Plaintiff failed to present a forecast of evidence sufficient to defeat the motion for summary judgment on behalf of UNC, ASU, the president of UNC, and the chancellor of ASU as to plaintiff's claims under the N.C. Constitution for violation of his free speech rights based on his removal as Dean of Learning Resources at ASU. Am Jur 2d, Civil Rights 261; Constitutional Law 496.