Volume 331 — North Carolina Reports

Arbitration and Award 3 (NCI4th) — construction contract — arbitration clause in general provisions — consent to jurisdiction in supplementary conditions The trial court and the Court of Appeals erred by holding that a supplementary general condition in a construction contract, which provided that the contractor agreed to submit to the jurisdiction of North Carolina courts, conflicted with an arbitration clause in the general conditions and, under a precedence clause in the instructions to bidders, that the contract did not contain an agreement to arbitrate. There is no irreconcilable conflict between the arbitration clause of the general conditions (section 7.9) and the supplementary general condition (section 7.1.1) because that section merely provides that the contractor consents to the jurisdiction of the courts of North Carolina for any action brought to enforce the arbitration agreement or an award resulting from arbitration. Am Jur 2d, Arbitration and Award 14, 15, 33. <block_quote> Validity and effect, and remedy in respect, of contractual stipulation to submit disputes to arbitration in another jurisdiction. 12 ALR3d 892.</block_quote><page_number>Page 89</page_number>

1. Criminal Law 83 (NCI4th) — racial discrimination in selection of grand jury foreman — motion to dismiss indictments — denied The trial court erred in a murder prosecution by denying defendant's motion to dismiss the indictments on the ground that the grand jury foreman was chosen in a racially discriminatory manner where the court summarily denied defendant's motion on the ground that the rule in State v. Cofield, <cross_reference>324 N.C. 452</cross_reference> (Cofield II) operated prospectively, but the principles announced in State v. Cofield, <cross_reference>320 N.C. 297</cross_reference> (Cofield I) were fully applicable to defendant's motion. Defendant would have been entitled to a hearing to determine whether there was in fact racial discrimination in the selection of the indicting grand jury foreman, had his motion been timely filed. Am Jur 2d, Grand Jury 14. <block_quote> Group or class discrimination in selection of grand or petit jury as prohibited by Federal Constitution — Supreme Court cases. <cross_reference>33 L.Ed.2d 783</cross_reference>.</block_quote> 2. Grand Jury 43 (NCI4th) — racial discrimination in selection of grand jury foreman — motion to dismiss indictments — untimely filed The trial court did not err by denying defendant's motion to dismiss indictments on the ground that the grand jury foreman was chosen in a racially discriminatory manner where the Certificate of Arraignment shows that defendant was allowed twenty-one days to file motions and waited some five months before filing his Cofield motion the week before trial<page_number>Page 200</page_number> was to begin. Whether to grant relief was within the trial court's discretion. Am Jur 2d, Grand Jury 21, 23. 3. Arson and Other Burnings 32 (NCI4th) — arson — occupation by a living person — evidence sufficient The trial court did not err in denying defendant's motion to dismiss the charge of first degree arson on the ground of insufficient evidence that the building was occupied by a living person when the arson occurred where defendant poured kerosene throughout the building and lit a fire in the bedroom area of the building; the victim was still alive and breathing when defendant left; defendant told one witness that the building had not burned when doused with kerosene, so he got his girlfriend to go back with him to get some gas; defendant returned with a gallon of gasoline, poured it in the bedroom and kitchen area of the building, ignited it, and left; investigators discovered burned areas on part of the porch roof and around the window and door frame in addition to burned furnishings; the pathologist who examined the victim's body testified that it contained a potentially lethal fifty percent saturation of carbon monoxide, caused by smoke inhalation; and the pathologist concluded the victim had been alive while the fire was burning and generating carbon monoxide because of the significant quantity inhaled. Am Jur 2d, Arson and Related Offenses 5, 46. 4. Kidnapping 1.2 (NCI3d) — kidnapping and armed robbery — separate restraint — evidence sufficient There was such additional restraint as to satisfy that element of kidnapping in a prosecution for armed robbery, kidnapping, arson and murder where all the restraint necessary and inherent to the armed robbery was exercised by threatening the victim with the gun. When defendant bound the victim's hands and feet, he exposed the victim to a greater danger than that inherent in the armed robbery itself. Am Jur 2d, Abduction and Kidnapping 9. <block_quote> Seizure or detention for purpose of committing rape, robbery, or similar offense as constituting separate crime of kidnapping. 43 ALR3d 699.</block_quote><page_number>Page 201</page_number> 5. Kidnapping 1.3 (NCI3d) — instructions — lesser offense not submitted — no error The trial court did not err by not instructing the jury on false imprisonment as a lesser included offense of first-degree kidnapping where the evidence indicates unerringly that defendant restrained the victim only for the purpose of facilitating the commission of armed robbery and for no other purpose. His decision to murder the victim and burn the premises came after the restraint underlying the kidnapping offense was complete. Am Jur 2d, Trial 1429. 6. Criminal Law 1237 (NCI4th) — Fair Sentencing Act — apprehension of other felons — not found — error The trial court erred when sentencing defendant by failing to find in mitigation that defendant aided law enforcement officers in the apprehension of other felons where two officers testified that defendant had been an informant for some years and had provided information and participated in investigations which led to the arrests and convictions of felons. For a trial court to ignore uncontradicted, manifestly credible evidence of either an aggravating or a mitigating factor would render the Act's requirement to consider the statutory factors meaningless and would contradict the objective that the punishment imposed take into account factors that may diminish or increase the offender's culpability. N.C.G.S. 15A-1340.4(a)(2)h. Am Jur 2d, Criminal Law 598, 599.

1. Constitutional Law 344 (NCI4th) — excusal of jurors — private bench conferences — right of defendant to be present It was not error for the trial court to excuse prospective jurors after unrecorded bench conferences when defendant's trial for a first and a second degree murder had not<page_number>Page 273</page_number> commenced, but it was error to do so after defendant's trial had begun and he had an unwaivable right to be present at all stages of the trial. The State failed to carry its burden of showing that the error was harmless beyond a reasonable doubt although the State contended that the error was harmless because there must be a new sentencing hearing due to McKoy error and the guilt phase was therefore not a capital trial; that the court did not excuse the jurors but deferred their services to a later term and pursuant to N.C.G.S. <cross_reference>9-6</cross_reference> (f) there is no provision for objections to deferrals to jury service, so that the composition of the jury would have been no different had defendant been present at the bench conferences; that the evidence against defendant was so overwhelming that the jury would have convicted him whatever its composition; and that defendant was not tried for his life for the second degree murder, so that he could waive his right to be at the bench conferences for that trial. Am Jur 2d, Criminal Law 901. 2. Homicide 212 (NCI4th) — beating — heart attack — evidence of homicide sufficient The trial court properly denied defendant's motion to dismiss a charge of second degree murder, which produced a manslaughter conviction, where the State's evidence was that the victim's death was caused by an abnormal heartbeat caused by the assault she had suffered from defendant. It is too much of a coincidence that the victim died of heart failure shortly after being assaulted to say this makes the assault speculative as a cause. The stress of seeing her daughter assaulted was a part of the stress of being assaulted by the defendant as part of one incident. Am Jur 2d, Homicide 18. Homicide by fright or shock. 47 ALR2d 1072.

1. Master and Servant 8.1 [NCI3d) — minimum wage — employees required to work for less — violation of public policy Defendants violated the public policy of North Carolina by firing plaintiffs for refusing to work for less than the statutory minimum wage. Although the definition of "public policy" approved by the Supreme Court does not include a laundry list of what is or is not "injurious to the public or against the public good," at the very least public policy is violated when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes. Am Jur 2d, Labor and Labor Relations 2559, 2567, 2571. 2. Master and Servant 10.2 (NCI3d) — wrongful discharge — refusal to accept less than minimum wage — alternative remedies The availability of alternative remedies does not prevent a plaintiff from seeking tort remedies for wrongful discharge based on the public policy exception to the employment at will doctrine, absent federal preemption or the intent of our state legislature to supplant the common law with exclusive statutory remedies. The availability of alternative common law and statutory remedies supplements rather than hinders the ultimate goal of protecting employees who have been fired in violation of public policy. Am Jur 2d, Master and Servant 48.7, 60. 3. Master and Servant 10.2 (NCI3d) — wrongful discharge — public policy exception — federal preemption — state statutory preclusion The issue of whether the federal Fair Labor Standards Act preempted a state action for wrongful discharge for refusal to work for less than minimum wage was a constitutional question which was not passed upon by the trial court or the Court of Appeals and was not properly before the Supreme Court. Moreover, the North Carolina legislature, by enacting<page_number>Page 349</page_number> the Wage and Hour Act, did not intend to preclude wrongful discharge actions based on violation of the state's public policy requiring employers to pay their employees at least the statutory minimum wage. <block_quote> Am Jur 2d, Labor and Labor Relations 2545, 2546, 2559; Master and Servant 48.7, 66.</block_quote> 4. Master and Servant 10.2 (NCI3d) — wrongful discharge — separate claim for bad faith discharge — not recognized The discussion of bad faith discharge by the North Carolina Supreme Court in Coman v. Thomas Manufacturing Co., <cross_reference>325 N.C. 172</cross_reference>, was dicta. The issue in Coman was whether to adopt a public policy exception to the employment at will doctrine and the Court did not recognize a separate claim for wrongful discharge in bad faith. Am Jur 2d, Master and Servant 48.7.

1. Abortion; Prenatal or Birth-Related Injuries and Offenses 7 (NCI4th); Torts 7 (NCI3d) — punitive damages claim for stillborn child's death — release by parents not bar Plaintiff administratrix's claim for punitive damages for the wrongful death of her stillborn child arising from an automobile accident was not barred by a release signed individually by plaintiff and her husband before plaintiff qualified as the administratrix of her child's estate, since plaintiff had no authority to settle the wrongful death claim of the fetus<page_number>Page 369</page_number> prior to qualifying as administratrix, and the release operated only to discharge defendants' liability to the signers thereof. Am Jur 2d, Abortion 37; Death 187, 191, 192. 2. Abortion; Prenatal or Birth-Related Injuries and Offenses 6 (NCI4th) — wrongful death of stillborn child — punitive damages — failure to join with parents' claims — claim not barred by DiDonato decision Plaintiff administratrix's claim for punitive damages for the wrongful death of her stillborn child arising from an automobile accident was not barred by the decision in DiDonato v. Wortman, <cross_reference>320 N.C. 423</cross_reference>, because it was not joined with personal injury claims of the parents in a settlement with the tortfeasors where the parents settled their claims on 8 April 1987; the DiDonato decision was filed on 28 July 1987; plaintiff qualified as administratrix of her child's estate on 28 July 1988; and it was thus impossible for plaintiff to anticipate and comply with the mandatory joinder requirement announced in DiDonato. Am Jur 2d, Abortion 37; Death 191, 412. 3. Abortion; Prenatal or Birth-Related Injuries and Offenses 8 (NCI4th) — wrongful death of stillborn child — pecuniary and loss of services damages not recoverable Pecuniary damages and damages for loss of services and companionship are not recoverable in an action for the wrongful death of a stillborn child. Am Jur 2d, Death 220, 250. <block_quote> Right to maintain action or to recover damages for death of unborn child. 84 ALR3d 411.</block_quote>

1. Evidence and Witnesses 345 (NCI4th) — prior sexual assault — admissible to show intent in burglary case — erroneous instruction In a prosecution for first degree kidnapping, first degree murder, second degree burglary, armed robbery, and larceny of an automobile, testimony by a witness concerning a sexual assault committed on her by defendant ten days before the crimes in question was relevant and admissible to support the prosecution's theory in the burglary case that defendant entered the victim's home with the intent to commit first degree rape or first degree sexual offense where there were substantial similarities between the two alleged sexual assaults in that both the witness and the victim were young women in their late twenties whom defendant knew casually through friends; neither of the women had a previous sexual relationship with defendant; defendant went to the woman's home in each instance; defendant used a box cutter in his attack on the witness and a knife in his attack on the victim; defendant admitted that the victim performed fellatio upon him; and this was the same type of sexual activity that defendant allegedly forced the victim to commit. However, the jury should have<page_number>Page 605</page_number> been instructed to disregard testimony about the prior sexual assault when the trial court refused to instruct the jury on second degree burglary on the basis of a sexual assault, and the court erred in giving the jury an instruction which may have led the jury to conclude erroneously that it could consider evidence of the prior sexual assault for the purpose of proving that defendant had the intent to commit any of the crimes with which he had been charged. Am Jur 2d, Evidence 298-301, 363, 364, 366. 2. Evidence and Witnesses 299, 887 (NCI4th) — prior sexual assault — triple hearsay — impeachment — prejudicial effect outweighing probative value In a prosecution for murder, kidnapping, armed robbery, larceny, and second degree burglary based on an intent to commit a sexual assault, a witness's triple hearsay testimony during cross-examination by the State about a seventeen-year-old girl's allegation that defendant had previously sexually assaulted her was not admissible for substantive purposes to prove that the sexual assault occurred or for impeachment purposes. Even assuming that the State's cross-examination was relevant for impeachment purposes as tending to show that the witness was biased in favor of defendant and would not have believed anyone who made a claim of sexual assault against defendant, this testimony should have been excluded under Rule of Evidence 403 on the ground that its probative value was substantially outweighed by its danger of unfair prejudice to defendant where the jury was given no limiting instruction, and this testimony exacerbated the prejudicial effect of other prior sexual assault evidence for which the jury was given defective instructions permitting its consideration for the purpose of proving intent for any of the crimes charged. Am Jur 2d, Evidence 493. 3. Constitutional Law 252 (NCI4th); Criminal Law 109 (NCI4th) — appointment of defense psychiatric experts — requiring reports to prosecutor — use of reports at sentencing — harmless error The trial court erred in requiring court-appointed defense psychiatric experts to prepare and submit to the prosecutor written reports of their evaluations of defendant as a condition<page_number>Page 606</page_number> of their appointment where the court's order was not limited to disclosure of results or reports intended to be introduced at trial or related to the testimony of an expert whom defendant intended to call as a witness at his trial. However, defendant was not prejudiced by this error where defendant relied at the sentencing hearing upon the results and reports of the mental examinations and tests conducted by the court-appointed experts, and consequently the State would have been entitled to pretrial discovery of these reports. N.C.G.S. <cross_reference>15A-905</cross_reference>(b). Am Jur 2d, Criminal Law 67. 4. Criminal Law 109 (NCI4th) — discovery by State — mental examination reports — intent to use in guilt-innocence or sentencing phase Under N.C.G.S. <cross_reference>15A-905</cross_reference>(b), results or reports of mental examinations or tests conducted by defense experts are subject to pretrial discovery by the State as long as such information or the experts are intended to be relied upon by the defendant at either the guilt-innocence or the sentencing phase of his trial. Am Jur 2d, Criminal Law 67.

1. Criminal Law 1352 (NCI4th) — McKoy error — jury polled — error not prejudicial McKoy error in capital sentencing instructions was not prejudicial where the jury was polled as a whole to confirm each answer on the verdict sheet and then polled individually as to each answer on the verdict sheet, including those concerning mitigating circumstances. Although defendant contended that jurors could have understood "Is this your answer?" to refer to the jury as a whole, reasonable jurors would understand that they were being polled individually and that the question therefore was referring to them as individual jurors. Moreover, although the trial court clerk did not poll the jury foreman about the jury's group responses, as in State v. Laws, <cross_reference>328 N.C. 550</cross_reference>, the results of the polls considered together<page_number>Page 621</page_number> establish with sufficient certainty that each mitigating circumstance rejected by the jury was rejected unanimously and that no individual juror would have found any of these mitigating circumstances to exist had each individual juror been permitted to do so. Am Jur 2d, Criminal Law 786, 787, 1012-1019. <block_quote> Unanimity as to punishment in criminal case where jury can recommend lesser penalty. 1 ALR3d 1461.</block_quote> 2. Criminal Law 964 (NCI4th) — murder — motion for appropriate relief on appeal — subject to dismissal — reviewed in interests of judicial economy and thorough review Arguments raised by a murder defendant in a motion for appropriate relief directed to the North Carolina Supreme Court following remand from the U.S. Supreme Court were subject to dismissal because both arguments could have been raised in the original appeal. Motions for appropriate relief may not be used to add new arguments which could have been raised in the briefs originally filed. However, the Court elected to review defendant's contentions in the interests of judicial economy and thorough scrutiny of a capital case. Am Jur 2d, Appeal and Error 723. 3. Criminal Law 1353 (NCI4th) — murder — mitigating circumstance — impaired capacity — one prong omitted — harmless error Although the trial court erred in a murder prosecution by not submitting the mitigating circumstance of impaired capacity to appreciate the criminality of the conduct, the record demonstrates beyond a reasonable doubt that none of the jurors would have found that circumstance to exist had the trial court submitted it to the jury. Although defense counsel made an affirmative, tactical request that the circumstance not be submitted and stated their reasons on the record, the trial court is mandated by the language of N.C.G.S. <cross_reference>15A-2000</cross_reference>(b) to submit a statutory mitigating circumstance to the jury when evidence is presented which may support the circumstance. The evidence was sufficient to support submission of the mitigating circumstance, but it would have rested on the same evidence as all of the other mitigating circumstances dealing with defendant's mental disease and substance abuse. It is<page_number>Page 622</page_number> inconceivable that, having rejected the evidence as to all the other mitigating circumstances dealing with defendant's alleged mental or emotional disturbance, the jury would have accepted the evidence and found that prong of the impaired capacity mitigating circumstance not submitted. Am Jur 2d, Homicide 513, 516. 4. Criminal Law 1363 (NCI4th) — murder — mitigating circumstance — life sentence in Virginia — not submitted — no error The trial court did not err in a murder prosecution by refusing to submit to the jury as a nonstatutory mitigating circumstance that defendant had received a life sentence in Virginia for another killing about which the prosecution had introduced evidence. Although the sentence comprises part of his formal criminal record and was offered against defendant by the State in the sentencing hearing, "the additional protection to society" possibly achieved by his incarceration under that sentence is not an aspect of defendant's record and was irrelevant. Am Jur 2d, Homicide 514.

1. Constitutional Law 252 (NCI4th) — right to court-appointed psychiatrist — sufficiency of showing The trial court erred in the denial of an indigent defendant's pretrial motion for appointment of a psychiatrist at state expense to assist in the preparation of his defense on numerous charges stemming from a three and one-half hour ordeal in which defendant held his half sister at gunpoint where defendant showed that he had previously been diagnosed as being schizophrenic; his current diagnosis by a psychiatrist at Dorothea Dix Hospital "suggested a longstanding and severe personality disorder," possibly accompanied with delusional beliefs; defendant's attorney informed the trial court that he would pursue an insanity defense if the court-appointed psychiatrist believed such a defense was viable; and the prosecutor clearly anticipated the possibility of an insanity defense in that she had already subpoenaed the Dix Hospital psychiatrist who examined defendant to determine his competency to stand trial. Am Jur 2d, Criminal Law 67, 70. <block_quote> Right of indigent defendant in state criminal case to assistance of psychiatrist or psychologist. 85 ALR4th 19.</block_quote> 2. Constitutional Law 252 (NCI4th) — right to court appointed psychiatrist — lack of problems between arrest and motion not dispositive While evidence of psychiatric problems during the interval between defendant's arrest and his motion for appointment of a psychiatrist may be considered by the trial court in determining whether to grant the motion, the lack of such evidence is not dispositive. Am Jur 2d, Criminal Law 67, 70. 3. Constitutional Law 252 (NCI4th) — motion for court appointed psychiatrist — examination by Dix Hospital psychiatrist not sufficient The trial court erred in denying defendant's motion for a court-appointed psychiatrist on the ground that there was<page_number>Page 650</page_number> no need to appoint a psychiatrist to assist defendant because a psychiatrist from Dorothea Dix Hospital had already examined defendant and his conclusions were somewhat favorable to defendant, since the only role of the Dix Hospital psychiatrist was to determine if defendant was competent to stand trial, and his involvement did not fulfill the state's constitutional obligation to defendant. Am Jur 2d, Criminal Law 67, 70.

1. Homicide 244 (NCI4th) — first degree murder — sufficiency of evidence of premeditation and deliberation The State presented sufficient evidence of premeditation and deliberation to support defendants' convictions for first degree murder where the evidence tended to show that, after defendants and their group shouted vulgarities at the victim and his two female friends in a nightclub parking lot, the victim attempted to leave; one of the members of defendants' group then hit the victim's vehicle with a cinderblock; the victim got out of the car and knocked this person to the pavement, but then let him up and told him that he and his friends wanted to be left alone; this person ran back to the others, and the group started after the victim; as they approached the car, the victim stood alone to meet them and to defend himself and his friends; the two defendants then made a<page_number>Page 681</page_number> concerted attack on the victim; during the fight, the first defendant pulled out a knife and stabbed the victim; the second defendant used a boxcutter during the course of the fight, which was found ten to fifteen feet from the victim's body; after the victim was rendered helpless, the first defendant continued to strike him; and the two defendants then fled the scene. This evidence was sufficient to support jury findings of an absence of provocation on the part of the victim, the dealing of lethal blows by the defendants after the victim had been rendered helpless, and a killing accomplished in a brutal manner through the infliction of numerous mortal wounds. Am Jur 2d, Homicide 52, 246, 316, 454. 2. Constitutional Law 344 (NCI4th) — capital trial — private bench conferences with prospective jurors — denial of right to presence at all trial stages The trial judge violated the right of defendants to be present at all stages of their capital trial when he conducted unrecorded private bench conferences with prospective jurors and excused numerous prospective jurors after these conferences. The State failed to show that the exclusion of these capital defendants from this stage of their trial was harmless beyond a reasonable doubt where the record does not reveal the substance of most of the trial court's private discussions with the prospective jurors who were excused. Art. I, 23 of the N.C. Constitution. Am Jur 2d, Criminal Law 913. <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 409.</block_quote> 3. Homicide 22 (NCI4th); Constitutional Law 342 (NCI4th) — first degree murder — life sentence — capital trial — presence at all stages Where defendant was tried on an indictment charging him with the capital felony of first degree murder and, upon his conviction for that crime, was subjected to a capital sentencing proceeding, the fact that the jury recommended and the trial court entered a sentence of life imprisonment did not change the capital nature of that trial or his status as a capital defendant in that trial, and the unwaivable requirement<page_number>Page 682</page_number> of the presence of a capital defendant at every stage of his trial was thus applicable. Am Jur 2d, Criminal Law 901 et seq.

Rules of Civil Procedure 41.1 (NCI3d) — voluntary dismissal — oral notice — subsequent written notice — beginning of one-year savings provision When a trial court instructs, or expressly permits, a plaintiff who has given oral notice of voluntary dismissal pursuant to Rule 41 (a)(1) to file written notice to the same effect at a later date during the session of court at which oral notice was given, and plaintiff files written notice accordingly, the one-year provision for refiling provided by the rule begins to run when written notice is filed. Am Jur 2d, Limitation of Actions 316.

Landlord and Tenant 8.4 (NCI3d) — dangerous stairs — knowledge by landlord — summary judgment for landlord The trial court correctly granted summary judgment for defendants in a negligence action arising from plaintiff Betty Penny's fall down a staircase in a house which plaintiffs rented from defendants. Plaintiffs failed to produce any evidence showing that defendants had actual or implied knowledge that the carpet on the staircase was negligently installed and overlapped the risers, and plaintiffs had sufficient knowledge of the staircase's narrowness, uneven risers and lack of handrail to place the burden on plaintiffs to either correct the problem or inform defendants of the need for repair. Am Jur 2d, Premises Liability 39.

Damages 68 (NCI4th) — assault and battery established — nominal damages not submitted — punitive damages awarded without compensatory damages — no error Plaintiff could recover punitive damages from defendant where the jury failed to award compensatory damages, was not instructed on nominal damages, and plaintiff' established to the jury's satisfaction all of the elements of assault and battery arising from the sexual abuse she suffered from defendant, her father. Although it was said in Jones v. Gwynne, <cross_reference>312 N.C. 393</cross_reference>, that the jury must award plaintiff actual or nominal damages before punitive damages may be awarded, that language is an inexact description of the law in prior cases. Punitive damages may not be awarded unless otherwise a cause of action exists and at least nominal damages are recoverable by plaintiff. The jury found here that plaintiff had established her cause of action, plaintiff was therefore entitled to at least nominal damages, and that entitlement was sufficient to support the award of punitive damages. Am Jur 2d, Damages 741-744. <block_quote> Sufficiency of showing of actual damages to support award of punitive damages — modern cases. 40 ALR4th 11.</block_quote>