Volume 332 — North Carolina Reports

1. Jury 7.14 (NCI3d) — peremptory challenges — racial grounds — failure to show race of challenged jurors Assuming that the trial court erred in excluding defendant's evidence tending to show that he considered himself to be an Indian in a hearing on a motion to bar the exercise of peremptory challenges on racial grounds and in holding that it could not find defendant to be a member of a cognizable minority, these errors were not prejudicial where the State exercised nine peremptory challenges to which defendant objected but the record does not show the race of any challenged juror. Am Jur 2d, Jury 233-237. <block_quote> Use of peremptory challenge to exclude from jury persons belonging to a class or race. 79 ALR3d 14.</block_quote> 2. Evidence and Witnesses 2473 (NCI4th) — plea bargain — motion to disclose — no showing bargain made The trial court did not err in the denial of one defendant's motion to compel the State to disclose any plea bargain made by any codefendant or accomplice where there is nothing in the record to indicate that a plea bargain had been made by any witness against the defendants. N.C.G.S. <cross_reference>15A-1054</cross_reference>. Am Jur 2d, Criminal Law 774. 3. Criminal Law 217 (NCI4th) — Speedy Trial Act — discovery motion — time tolled — trial after discovery completed Defendant's right to a speedy trial under the Speedy Trial Act was not violated where defendant made a motion for discovery before the indictment was returned, the period between the return of the indictment and the completion of discovery should be excluded from the speedy trial period, and the trial began within 120 days after discovery was completed. Am Jur 2d, Criminal Law 662, 854, 855.<page_number>Page 152</page_number> 4. Constitutional Law 327 (NCI4th) — speedy trial — constitutional right — delay during discovery Defendant's Sixth Amendment right to a speedy trial was not violated where discovery was not completed until August 1987 and the trial commenced in September 1987, and there was no evidence that the delay was oppressive to defendant or that he was prejudiced by the delay. Am Jur 2d, Criminal Law 652-659. 5. Jury 7.11 (NCI3d) — death penalty views — excusal for cause — no opportunity for rehabilitation The trial court did not err in excusing for cause two prospective jurors who stated unequivocally that they could under no circumstances vote for the death penalty and in refusing to permit defense counsel to attempt to rehabilitate the two jurors by asking whether they could apply the law as given to them by the judge where there was nothing in the record to indicate that either of the two excused jurors would have given different answers if questioned further. Am Jur 2d, Jury 195-212. 6. Jury 7.9 (NCI3d) — prospective juror — bias in favor of defendant — challenge for cause — no opportunity for rehabilitation When a prospective juror stated that because he knew the defendant "so well" the State would have to satisfy him beyond a shadow of a doubt before he would vote to find defendant guilty and that he knew the difference between beyond a shadow of a doubt and beyond a reasonable doubt, the trial court did not err in refusing to permit defense counsel to ask the juror whether he could apply the law as given to him by the court before it allowed the State's challenge for cause of the juror. Am Jur 2d, Jury 195-212. 7. Jury 6.4 (NCI3d) — prospective juror — death penalty views — question disallowed — no error The trial court did not err in sustaining the State's objection to defense counsel's question to a prospective juror as to how she felt "about a life sentence as opposed to a death sentence in a case where a person is convicted of first degree<page_number>Page 153</page_number> murder" where the juror had previously stated that she was not opposed to the death penalty but did not think it was necessarily appropriate in every case in which a defendant was convicted of first degree murder. Am Jur 2d, Jury 195-212. 8. Evidence and Witnesses 1134 (NCI4th) — statements by nontestifying codefendant — implied admissions by defendant — Bruton rule inapplicable The trial court properly admitted testimony by one witness as to what the nontestifying codefendant said in defendant's presence about plans to divide a murder victim's jewelry and money after he was killed and testimony by a second witness that the codefendant stated in defendant's presence that defendant had a chance to get the victim when the victim was beating her and not to worry about a friend's talking because the friend was "cool," since these statements were admissible against defendant as implied admissions and were not barred by the rule of Bruton v. United States, <cross_reference>391 U.S. 123</cross_reference>. Am Jur 2d, Evidence 610, 638, 639. 9. Evidence and Witnesses 1150 (NCI4th) — prima facie case of conspiracy — admissibility of declarations by defendant Where the State established a prima facie case of a conspiracy between defendant and the codefendant to murder the victim, the trial court properly admitted testimony by one witness that he heard defendant say, "You do your part and . . . I'll take care of the rest" and testimony by a second witness that, after the codefendant complained when the first attempt to kill the victim was aborted, defendant said, "Don't worry, Baby, it will get done," since these statements by defendant were admissible as declarations made in furtherance of the conspiracy. Am Jur 2d, Evidence 642. <block_quote> Admissibility as against conspirator of extrajudicial declarations of coconspirator — Supreme Court cases. <cross_reference>1 L.Ed.2d 1780</cross_reference>.</block_quote> 10. Evidence and Witnesses 391 (NCI4th) — other bad acts — propensity to commit crime — harmless error The trial court in a first degree murder case erred in the admission of testimony that a witness on one occasion<page_number>Page 154</page_number> went with defendant to the courthouse in Lumberton to answer a charge of breaking or entering and that on another occasion he went with defendant to engage in a fight since this testimony was not relevant to any issue in the case except to show that defendant had a propensity for bad acts and acted in conformity therewith in killing the victim. However, this error was harmless in light of the strong substantive evidence against defendant as well as other evidence of defendant's bad acts, including the ingestion of illegal drugs. Am Jur 2d, Evidence 339, 340, 366. 11. Evidence and Witnesses 787 (NCI4th) — exclusion of evidence — similar testimony by same witness Any error in the trial court's sustention of the State's objection to a question as to whether the witness had been told by officers that it was defendant they wanted was cured when the witness later answered the same question. Am Jur 2d, Witnesses 858-861. 12. Evidence and Witnesses 2873 (NCI4th) — cross-examination — exclusion of repetitious question The trial court did not abuse its discretion in sustaining the State's objection to a repetitious question asked by defense counsel on cross-examination of a State's witness. Am Jur 2d, Witnesses 858-861. 13. Criminal Law 465 (NCI4th) — jury argument — inference of malice The district attorney's jury argument that "the law . . . says that malice is merely the doing of a wrongful act without just cause or excuse, and when a person dies at the business end of a deadly weapon you, the jury, may infer that" was not an incorrect statement of the law. Am Jur 2d, Trial 640, 641, 643. <block_quote> Counsel's right in criminal prosecution to argue law or to read law books to the jury. 67 ALR2d 245.</block_quote> 14. Criminal Law 466 (NCI4th) — jury argument — defense tactic — no comment on counsel's credibility The district attorney's jury argument about defendant's tactic of shifting the blame for a killing to his codefendants<page_number>Page 155</page_number> was not an improper comment on defense counsel's credibility and effective assistance and was not error. Am Jur 2d, Trial 683, 684. <block_quote> Propriety and effect of attack on opposing counsel during trial of a criminal case. 99 ALR2d 508.</block_quote> 15. Criminal Law 439 (NCI4th) — jury argument — type of witnesses available — no improper characterization of defendant The district attorney's statement in his jury argument that "when you try the devil, you have to go to hell to find your witnesses" was not an improper characterization of defendant as the devil but was merely an illustration of the type of witnesses available in this case. Am Jur 2d, Trial 681, 682. <block_quote> Negative characterization or description of defendant by prosecutor during summation of criminal trial, as ground for reversal, new trial, or mistrial — modern cases. 88 ALR4th 8.</block_quote> 16. Criminal Law 445 (NCI4th) — State's handling of evidence — propriety of jury argument The district attorney's jury argument about the State's handling of the evidence was not an improper expression of opinion on the evidence but was a proper argument that the State had been careful in preserving the evidence and the jury should believe it. Am Jur 2d, Trial 632, 634-637. 17. Criminal Law 463 (NCI4th) — jury argument — comment supported by evidence The district attorney's jury argument in a first degree murder case that "the only practical one in the whole bunch seems to be the little sixteen year old girl . . . who says — `[w]e will never get the blood out of the cracks [of the floor]'" was supported by the evidence, although the girl did not testify, where there was testimony that the girl made this statement during a discussion about how the victim should be killed when it was suggested that defendant kill the victim while he was sitting on a sofa in the codefendant's living room. Am Jur 2d, Trial 632.<page_number>Page 156</page_number> 18. Criminal Law 741 (NCI4th) — instructions — codefendant acting in concert — no expression of opinion on defendant's guilt The trial court's instruction in a first degree murder case that, in order to find the codefendant guilty of murder by lying in wait, the State must prove, inter alia, that the codefendant acted in concert with defendant "who lay in wait for [the victim]" and that the codefendant was acting in concert with defendant "who intentionally assaulted [the victim]" did not constitute an expression of opinion on the evidence that defendant was guilty. Am Jur 2d, Trial 1191, 1204. 19. Criminal Law 480 (NCI4th) — juror contact by family member — sufficiency of inquiry by court The trial court did not commit prejudicial error in failing to make further inquiry when the court asked a juror whether a family member of one of the parties had talked to him and the juror said that no family member had done so where defendant did not request any further inquiry or make a motion for a mistrial pursuant to N.C.G.S. <cross_reference>15A-1061</cross_reference>. Am Jur 2d, Trial 1637-1639. 20. Constitutional Law 342 (NCI4th) — trial court's communication with juror — absence of defendant — harmless error The trial judge erred in communicating with a juror out of the presence of defendant and her attorneys when he inquired of a juror whether a family member of one of the parties had spoken to him and the juror said that no family member had done so. However, this error was harmless where the trial judge placed in the record information about this inquiry and this error could not have contributed to the result of the trial. Am Jur 2d, Criminal Law 692-695, 908, 909, 914. 21. Constitutional Law 342 (NCI4th) — capital trial — absence of defendant from courtroom — questions to prospective jurors — identification of photographs — no prejudicial error A defendant on trial for first degree murder was not prejudiced when the prosecutor examined three prospective jurors while defendant and one of her attorneys were absent from the courtroom where the questions asked by the prosecutor dealt with residences, occupations, church memberships,<page_number>Page 157</page_number> reading habits and preferred television programs, and the prosecutor did not excuse any juror while defendant was absent from the courtroom. Nor was defendant prejudiced when a pathologist identified photographs of the victim's body while defendant was absent from the courtroom. Am Jur 2d, Criminal Law 692-695, 908, 913. <block_quote> Validity of jury selection as affected by accused's absence from conducting of procedures for selection and impaneling a final jury panel for specific cases. 33 ALR4th 429.</block_quote> 22. Constitutional Law 342 (NCI4th) — capital trial — absence of defendant during testimony — harmless error Any error by the trial court in permitting the defendant in a capital case to be absent from the courtroom while a detective was reading a statement made by another prosecution witness was harmless beyond a reasonable doubt where defendant became visibly upset during the detective's testimony and asked permission to leave the courtroom; the trial court informed defendant that she had a right to be present and that the trial would continue if her request to leave was honored; and the statement read by the detective did not implicate defendant. Am Jur 2d, Criminal Law 698, 699, 930, 934. 23. Homicide 374 (NCI4th) — first degree murder — actual or constructive presence — acting in concert — sufficiency of evidence The evidence was sufficient for the jury to find that defendant was actually or constructively present when a killing occurred so as to support the trial court's submission to the jury of a charge of first degree murder on the theory that defendant was acting in concert with the codefendant, although defendant contends she was at least sixty-five feet away and inside the fence which enclosed her yard when the victim was killed outside the fence, where the evidence showed that defendant was able to see the attack on the victim and was close enough for the victim to call to her for help, and that defendant went into the house when the victim called to her. Furthermore, the evidence was sufficient for the jury to find that defendant acted in concert with the codefendant at the time of the killing, although she testified that she discovered the victim did not have any money with him the night he<page_number>Page 158</page_number> was killed and tried to signal the codefendant not to kill the victim on that date, when evidence tending to show that defendant had agreed with the codefendant and others that the victim would be killed is considered with the evidence that she was actually or constructively present when the killing occurred, ready to lend whatever aid was necessary. Am Jur 2d, Homicide 28, 29. 24. Homicide 372 (NCI4th) — first degree murder — submission of accessory before fact not required The trial court in a first degree murder case did not err in failing to submit to the jury the lesser included offense of accessory before the fact of first degree murder where all the evidence showed that defendant was on the front porch of her house within sight of the killing when the victim was attacked at the end of her driveway and that she was thus constructively present at the time the victim was killed. Am Jur 2d, Homicide 28, 535; Trial 1255, 1256. <block_quote> Lesser-related state offense instructions: modern status. 50 ALR4th 1081.</block_quote> 25. Criminal Law 751 (NCI4th) — acting in concert — instruction on burden of proof — no plain error when considered in context Although the trial court's instruction in a first degree murder case that "the burden of proof which the State must meet to obtain a conviction under the principle of acting in concert is less than its burden to prove that a defendant actually committed every element of the offense charged" was erroneous standing alone, the jury was not misled thereby and the instruction was not plain error where the context of this statement makes it clear that the court was referring to not having to prove that defendant did all the things which constitute the elements of murder; this language did not mean that the State did not have to prove the elements involving defendant beyond a reasonable doubt; and the court correctly instructed the jury as to the State's burden of proof in the case involving defendant at several other places in the charge. Am Jur 2d, Trial 1291, 1292. <block_quote> Supreme Court's views as to prejudicial effect in criminal case of erroneous instructions to jury involving burden of proof or presumptions. <cross_reference>92 L.Ed.2d 862</cross_reference>.</block_quote><page_number>Page 159</page_number> 26. Criminal Law 793 (NCI4th) — acting in concert — constructive presence — sufficiency of instructions The trial court's acting in concert instructions did not permit the jury to find that defendant was constructively present even though the jury did not find that she intended to aid or encourage the actual perpetrator of a murder, that she did not convey that intent to the perpetrator, and that the perpetrator was not aware of that intent, but the instructions properly informed the jury that defendant was constructively present if the jury found that she shared the criminal intent with the perpetrator and the perpetrator knew this and that the perpetrator knew either that defendant was aiding or encouraging him or was in a position to aid or encourage him when the killing occurred. Am Jur 2d, Trial 1120, 1121, 1241, 1244-1256. 27. Criminal Law 460 (NCI4th) — jury argument — reasonable inference from evidence The prosecutor's jury argument that defendant's blowing of her car horn when she met a codefendant's car on the day the victim was killed was not an attempt to stop the killing as defendant testified but was a signal to the occupants of the codefendant's car to proceed with the killing was a reasonable inference from the evidence and was not improper. Am Jur 2d, Trial 632, 634. 28. Jury 6.4 (NCI3d) — jury selection — statement that death penalty is crux or central issue The district attorney's repeated statement to prospective jurors that the death penalty was the "crux" or "central issue" in jury selection in a capital case did not convey to the jurors the impression that defendant's guilt was foreordained and was not improper. Am Jur 2d, Trial 499. 29. Jury 6.4 (NCI3d) — death penalty views — request for unequivocal answers The district attorney's request that prospective jurors give unequivocal answers to questions about their death penalty views was not error, it being mere speculation that these statements forced the jurors into pigeonholes and made those<page_number>Page 160</page_number> who favored the death penalty more likely to vote to impose the death penalty. Am Jur 2d, Jury 201, 202, 289, 290. 30. Jury 6.4 (NCI3d) — death penalty — jury selection — questions by prosecutor — necessity for death penalty — jurors' roles not minimized The district attorney's question as to whether prospective jurors thought the death penalty was "necessary" did not convey to the jury the impression that the death penalty is a deterrent to crime and was not improper. Furthermore, the district attorney did not minimize the importance of the jurors' roles in imposing the death penalty by asking if they could be a part of the machinery that brought it about. Am Jur 2d, Jury 201, 202, 289, 290. 31. Jury 6.3 (NCI3d) — jury selection — guilt of both defendants — improper question — error cured by charge The district attorney's question asking prospective jurors whether, if the State satisfied them beyond a reasonable doubt that "one or both of the defendants is guilty of murder in the first degree," they could vote to find "them" guilty was improper. However, this error was cured by the trial court's charge that the jury would have to be satisfied beyond a reasonable doubt as to each defendant before it could find that defendant guilty. Am Jur 2d, Jury 201-203, 212. 32. Criminal Law 1352 (NCI4th) — McKoy error — new sentencing hearing Two defendants sentenced to death for first degree murder are entitled to a new sentencing hearing because of McKoy error in the court's instructions requiring unanimity for mitigating circumstances. Am Jur 2d, Criminal Law 600. <block_quote> Unanimity as to punishment in criminal case where jury can recommend lesser penalty. 1 ALR3d 1461.</block_quote>

Municipal Corporations 12.3 (NCI3d) — governmental immunity — Risk Acceptance Management Corporation — no waiver of immunity Defendant City did not waive governmental immunity by organizing the Risk Acceptance Management Corporation, RAMCO, for the payment of tort claims of $1,000,000 or less against the City. It is clear that the City has not participated in a local governmental risk pool because the City has not joined with any other local government in the operation of RAMCO; the City has not entered into an insurance contract with RAMCO because RAMCO has not agreed to pay any money or do any act as an indemnity to the City for loss or injury to the City and, in fact, the City has agreed to indemnify RAMCO for payments it makes for tort claims against the City; the collection of leaves from the street did not make the street itself unsafe, so that the exception to governmental immunity for the negligent failure to maintain streets in a reasonably safe condition does not apply; the Court declined to abolish the doctrine of governmental immunity; action by the City under N.C.G.S. <cross_reference>160A-167</cross_reference> does not waive immunity; the City is not equitably estopped from raising the defense of governmental immunity in that it paid the property damage portion of plaintiff's claim and engaged in settlement negotiations with the plaintiff prior to filing this action because the plaintiff did not change his position to his detriment based on any action by the City and there was no misrepresentation by the City as to liability insurance coverage; the only third<page_number>Page 320</page_number> party benefit plaintiff is entitled to receive is the City's contract with RAMCO to pay certain claims against the City and RAMCO's negotiation of such a claim with plaintiff; and, finally, the Supreme Court declined to pass on the constitutional contention that the City violated the Equal Protection Amendment by picking and choosing through RAMCO the claims it would pay. Am Jur 2d, Municipal Tort Liability 5, 14, 19, 37-38. <block_quote> Comment Note — Municipal immunity from liability for torts. 60 ALR2d 1198.</block_quote>

1. Jury 6.4 (NCI3d) — murder — jury selection — prosecutor's comment — potential sentencing hearing — curative instructions — no prejudice There was no prejudice during jury selection for a first degree murder prosecution where the prosecutor said to potential jurors concerning the death penalty that "there is a very good possibility that you may have to answer that question." The prosecutor was explaining the distinction between the two phases of a capital trial and did not inform the jury that a sentencing phase was certain in defendant's trial, and the trial court gave a curative instruction. The statements and questions by the State were not of such a highly incriminating nature as to make the court's curative instruction insufficient to avert any prejudice. Am Jur 2d, Jury 195 et seq. 2. Jury 6.3 (NCI3d) — murder — jury selection — improper comment by prosecutor — proper instruction by court There was no prejudice during jury selection in a first degree murder prosecution from the prosecutor's comment that a juror would have to "look the monster in the eye" where the court sustained defendant's objection, granted the motion to strike, and instructed that juror and other members of the panel to disregard the statement. Am Jur 2d, Jury 195 et seq. 3. Jury 6.3 (NCI3d) — murder — jury selection — comment by prosecutor — comparison to codefendants — no prejudice There was no prejudice during jury selection for a murder prosecution where the court allowed the prosecutor to ask potential jurors whether they could weigh the testimony of two potential witnesses as they would other witnesses even though the two witnesses had entered a plea arrangement. The facts behind the plea bargains were fully aired during the trial and defendant failed to show any prejudice. Am Jur 2d, Jury 195 et seq.<page_number>Page 440</page_number> 4. Criminal Law 395 (NCI4th) — murder — jury selection — comment by judge on trial — comparison to football game The trial court did not express an opinion during jury selection for a murder prosecution when it described the proceeding to potential jurors as being like the two halves of a football game. Although defendant contended that the trial court unwittingly communicated an opinion that the case would have a penalty phase, the court used the term "may" and did not express an opinion. Am Jur 2d, Trial 277. 5. Criminal Law 528 (NCI4th) — murder — bench conference concerning next witness — "probation officer" spoken loudly — mistrial denied There was no abuse of discretion in the denial of a mistrial in a murder prosecution where the prosecutor spoke the words "probation officer" loudly during a bench conference concerning the next witness and evidence of defendant's prior convictions had not yet been admitted. Testimony during voir dire did not indicate that any of the witnesses heard the probation officer referred to by name, neither witness questioned knew whether the probation officer was defendant's or one of the codefendants', the trial court told the jurors to disregard anything they had heard and asked if they would be able to do that, none of the jurors said that they would be unable to do so, the trial court subsequently asked whether the jurors had heard anything at the conference, and no juror said that he had. Am Jur 2d, Trial 499. 6. Constitutional Law 342 (NCI4th) — murder — unrecorded bench and chambers conferences — no error The trial court did not err in a murder prosecution by conducting 78 unrecorded bench conferences and 2 unrecorded chambers conferences with counsel where defendant did not show or contend that he was absent from the courtroom during these proceedings and defendant acknowledges that his counsel was present at all of the bench and chambers conferences; defendant failed to show that his actual presence would have added to his defense; and defendant failed to show that the conferences implicated his confrontation rights or that his<page_number>Page 441</page_number> presence would have had a reasonably substantial relationship to his opportunity to defend. Am Jur 2d, Trial 226, 227. 7. Constitutional Law 342 (NCI4th) — murder — judge's contact with juror — letter for employer — no constitutional error There was no prejudicial constitutional error in a murder prosecution where the record was abundantly clear that the court's contact with a juror outside defendant's presence was about a letter signed for the juror for the benefit of the juror and her employer, consistent with the customary practice of our courts to ease employed jurors' stress during jury duty. Am Jur 2d, Trial 272 et seq. <block_quote> Postretirement out-of-court communications between jurors and trial judge as grounds for new trial or reversal in criminal case. 43 ALR4th 410.</block_quote> 8. Burglary and Unlawful Breakings 72 (NCI4th) — burglary — family residence of coconspirator — permission to enter — no authority A defendant in a first-degree burglary prosecution was without consent to enter a house where defendant entered into a conspiracy with a fellow college student to kill the coconspirator's parents. As a child who had a room in his parents' home, the authority of the coconspirator (Pritchard) was not unlimited and it cannot be said that either Pritchard or defendant had any good faith, reasonable belief that Pritchard had authority to give defendant permission to enter his parents' home for purposes of their conspiracy in the middle of the night when Pritchard was not there. Am Jur 2d, Burglary 13. <block_quote> Maintainability of burglary charge, where entry into building is made with consent. 93 ALR2d 531.</block_quote> 9. Criminal Law 1352 (NCI4th) — murder — sentencing — McKoy error There was McKoy error in a murder prosecution where the trial court instructed the jury to answer "no" to each mitigating circumstance that it failed to answer unanimously<page_number>Page 442</page_number> and the State could not meet its burden of establishing that the error was harmless beyond a reasonable doubt. Am Jur 2d, Trial 1121. 10. Constitutional Law 207 (NCI4th) — separate convictions for burglary and murder — felony murder rejected — burglary as aggravating factor for murder The trial court did not violate defendant's right to be free from double jeopardy where defendant was convicted separately of burglary and first degree murder based on premeditation and deliberation, but not of felony murder, and the court submitted to the jury as an aggravating circumstance that the offense was committed while defendant was engaged in a burglary. N.C.G.S. <cross_reference>15A-2000</cross_reference>(e)(5). Am Jur 2d, Criminal Law 277, 279.

1. Criminal Law 1305 (NCI4th) — capital or noncapital trial — purpose of pretrial hearing In any pretrial hearing in a first degree murder case to determine the capital or noncapital nature of the trial, the trial court must determine upon the record and facts before it, as submitted by the parties, whether there is sufficient<page_number>Page 462</page_number> evidence to support the submission of an aggravating circumstance to the jury. Am Jur 2d, Criminal Law 418. 2. Criminal Law 1333 (NCI4th) — capital trial — aggravating circumstance — standard of proof In ruling on whether an aggravating circumstance set forth in N.C.G.S. <cross_reference>15A-2000</cross_reference>(e) should be submitted, the trial court must use the same standard applied in determining the appropriateness of a motion to dismiss at the end of the evidence. Am Jur 2d, Trial 857 et seq. 3. Criminal Law 1342 (NCI4th) — capital trial — aggravating circumstance — law officer — official duties In determining whether an off-duty police officer serving as a security guard for a private enterprise was performing "official duties" at the time he was killed within the meaning of N.C.G.S. <cross_reference>15A-2000</cross_reference>(e)(8), the trial court must examine the particular nature, extent and circumstances of the secondary employment, the way in which such employment is routinely regarded by the employer and employee, and the nature of the actions taken by the officer at the time in question. Am Jur 2d, Sheriffs, Police, and Constables 46 et seq. 4. Criminal Law 1342 (NCI4th) — off-duty police officer — motel security guard — ejection rather than arrest of defendants — official duties The election of a uniformed off-duty police officer employed as a motel security guard to eject defendants from the motel premises rather than to arrest them for trespassing cannot be considered a bar to finding that he was acting pursuant to his official duties as a law enforcement officer in addition to any duties he was performing for the motel. The act of making an arrest does not define the point at which a uniformed officer, either on or off duty, begins to act officially rather than acting merely for private purposes. Am Jur 2d, Sheriffs, Police, and Constables 46 et seq.<page_number>Page 463</page_number> 5. Criminal Law 1342 (NCI4th) — off-duty police officer — retention of official status A police officer retains his official law enforcement officer status even while "off duty" unless it is clear from the nature of his activities that he is acting solely on behalf of a private entity, or is engaged in some frolic or private business of his own. Am Jur 2d, Sheriffs, Police, and Constables 46 et seq. 6. Criminal Law 1342 (NCI4th) — capital trial — aggravating circumstance — murder of law officer — motel security guard — ejection of defendants from motel premises — official duties The aggravating circumstance set forth in N.C.G.S. <cross_reference>15A-2000</cross_reference>(e)(8) relating to the murder of a law enforcement officer includes duly sworn law enforcement officers in uniform when they are performing off-duty, secondary law enforcement related duties when it is clear that such duties and the pay therefrom are incidental and supplemental to their primary duties of law enforcement on behalf of the general public. Therefore, a uniformed police officer employed as a motel security guard was engaged in his official duties when he ejected defendants from the motel premises where police department policy provided that officers engaged in secondary employment must enforce the law and not be bound by rules or restrictions of a private employer, and it is clear that the officer was at all times acting as a law enforcement officer under the full supervision and control of the municipal police department for the sole purpose of enforcing the law. Am Jur 2d, Sheriffs, Police, and Constables 46 et seq. 7. Criminal Law 1342 (NCI4th) — capital trial — aggravating circumstance — murder of law officer — motel security guard — engaged in official duties — killed because of official duties There was sufficient evidence for the jury to find that a uniformed off-duty police officer employed as a motel security guard "was engaged in the performance of his official duties" at the time he was killed where he had ejected defendants from the motel premises; defendants returned to the motel and one defendant, with a nylon stocking over his face, pointed a shotgun at the officer and shot him; and the officer was rising and drawing his weapon at the time he was killed. Furthermore, the jury could find that the officer was killed<page_number>Page 464</page_number> "because of the exercise of his official duty" where the evidence tended to show that the sole purpose of defendants' second visit to the motel was to kill the officer because of his earlier law enforcement actions involving them. Am Jur 2d, Sheriffs, Police, and Constables 46 et seq.

1. Criminal Law 884 (NCI4th) — failure to instruct on alibi — request at charge conference — appellate review Although defendant's counsel did not object to the charge when it was given, his earlier request for an alibi instruction at the charge conference was sufficient under Appellate Rule 10(b)(2) to warrant full review on appeal of the court's failure to instruct on alibi. Am Jur 2d, Appeal and Error 623; Trial 1082, 1261.<page_number>Page 612</page_number> 2. Criminal Law 777 (NCI4th) — alibi evidence — failure to give requested instruction The trial court erred in failing to give an alibi instruction as requested by defendant in a prosecution for first degree murder and felonious assault where defendant presented evidence that he was in Charlotte at the time the crimes were committed in Asheville. Am Jur 2d, Trial 1093, 1231, 1261. <block_quote> Duty of court, in absence of specific request, to instruct on subject of alibi. 72 ALR3d 547.</block_quote> 3. Criminal Law 778 (NCI4th) — failure to instruct on alibi — burden of proving prejudice The trial court's failure to instruct on alibi did not reduce the State's burden of proving, beyond a reasonable doubt, every element of the crimes charged and thus did not violate defendant's due process rights. Therefore, the harmless error standard of N.C.G.S. <cross_reference>15A-1443</cross_reference>(a) applies, and defendant bears the burden of showing a reasonable possibility that, absent the error, a different result would have been reached at trial. Am Jur 2d, Appeal and Error 810; Trial 1266. 4. Criminal Law 778 (NCI4th) — failure to instruct on alibi — harmless error Defendant was not prejudiced by the trial court's erroneous failure to instruct on alibi in a first degree murder and felonious assault prosecution where the trial court's instructions made it clear that the burden was on the State to prove every element of the crimes charged beyond a reasonable doubt, the jury was not led to believe that defendant had to prove anything in order to be found not guilty, and the court's charge thus afforded defendant the same benefits a formal charge on alibi would have afforded. Am Jur 2d, Appeal and Error 810; Trial 1266. 5. Indigent Persons 19 (NCI4th) — denial of court-appointed psychiatrist The trial court did not err in the denial of an indigent defendant's request for a court-appointed psychiatrist to assist him in his trial for first degree murder and felonious assault where defendant submitted an affidavit of his counsel and a copy<page_number>Page 613</page_number> of a psychiatric report submitted upon defendant's discharge from Dorothea Dix Hospital following a court-ordered competency evaluation; defense counsel's affidavit merely reiterated information contained in the psychiatric report; the report failed to show that defendant's sanity at the time of the offenses would be a factor at trial but provided affirmative evidence that defendant's mental state at the time of the offenses would not be a factor; and defendant did not otherwise make a showing of a particularized need for the assistance of a psychiatric expert. Am Jur 2d, Criminal Law 1006. <block_quote> Right of federal indigent criminal defendant to obtain independent psychiatric examination pursuant to subsection (e) of Criminal Justice Act of 1964, as amended (<cross_reference>18 USCS 3006A</cross_reference>(e)). 40 ALR Fed 707.</block_quote> 6. Homicide 244 (NCI4th) — first degree murder — sufficient evidence of premeditation and deliberation There was substantial evidence from which the jury could find that defendant killed the victim with premeditation and deliberation so as to support his conviction of first degree murder where the evidence tended to show that the victim had lived with defendant, had left him sometime during the month before the killing, and told him on the day of the murder that she no longer wanted to see him; defendant had ample time to premeditate and deliberate as he walked from the victim's house to his truck, returned to the house to tell the victim that it would not start, again went outside as a friend of the victim attempted to start her car, returned to the house, and went into the kitchen, ostensibly to get a drink of water; when he emerged from the kitchen, defendant fired at least six shots at the victim and her friend, then refused their requests that he help them and told them they had gotten what they deserved; and following the shootings defendant disappeared for over eight years before he was apprehended in New York. Am Jur 2d, Homicide 439. 7. Criminal Law 1242 (NCI4th) — extenuating relationship with murder victim — not mitigating factor for assault of second victim The trial court did not err by failing to find as a mitigating factor for assault with a deadly weapon with intent to<page_number>Page 614</page_number> kill inflicting serious injury that the relationship between defendant and the victim was extenuating or that defendant acted under strong provocation based on evidence of his relationship with a murder victim shot by defendant at the same time he shot the assault victim where the only evidence of defendant's relationship with the assault victim was that the victim had worked for him and that she knew him because he had been seeing the murder victim, and there was no evidence that the assault victim provoked defendant in any manner before he shot her. N.C.G.S. 15A-1340.4(a)(2)(i). Am Jur 2d, Assault and Battery 61. <block_quote> Modern status of the rules requiring malice "aforethought," "deliberation," or "premeditation," as elements of murder in the first degree. 18 ALR4th 961.</block_quote>