Volume 333 — North Carolina Reports

1. Homicide 427 (NCI4th) — first degree murder — proximate cause — intervening causation — instructions There was no prejudicial error in a first degree murder prosecution where the trial court instructed the jury erroneously on intervening causation and correctly on contributing causation and concerted action. If one person inflicts a mortal wound and, before the victim dies, another person kills the victim by an independent act, the former cannot be properly convicted of murder; however, if the same two people acted in concert to kill another according to an agreement among themselves, they both may be properly held accountable for the murder. Here, defendant was convicted of the separate offenses of conspiracy to commit first degree murder and robbery with a dangerous weapon in addition to first degree murder. It is logically implausible that the jury could have found that defendant acted independently for the purpose of the first degree murder, while, on the same facts, it found an agreement between defendant and a co-conspirator in convicting defendant on the conspiracy to murder charge. The erroneous instruction on intervening causation was obviated and rendered harmless because it can be conclusively determined that the jury did not base its decision on the challenged instruction. Am Jur 2d, Homicide 34, 36, 37. 2. Homicide 136 (NCI4th) — first degree murder — short form indictment — instruction on assault refused — no error The trial court did not err in a first degree murder prosecution by refusing to give an instruction on the lesser included offense of assault where defendant was charged with a short form indictment, alleging that he did "unlawfully, willfully and feloniously and of malice aforethought . . . kill and murder Russell Allan Kelly." A murder indictment such as this does not specify a murder accomplished by assault and will not support a verdict of guilty of assault, assault inflicting serious injury, or assault with intent to kill.<page_number>Page 30</page_number> Although the State has the exclusive power to word the indictment and may deprive defendant of the opportunity to have the jury consider a lesser included offense, the State takes a risk in using the short form indictment because the State is prohibited on double jeopardy principles from retrying the defendant on the lesser included crimes if the defendant is pronounced not guilty on the indicted offense and set free. Am Jur 2d, Homicide 216, 535, 544. 3. Evidence and Witnesses 1619 (NCI4th) — audio tape recording — references to other crimes — references not excluded — harmless error Any error was harmless where the trial court in a murder prosecution allowed into evidence unedited audio tape and a transcript of conversations in which defendant confessed to the crime and made reference to having committed other murders in the past. Although the trial court here did not conduct the required voir dire to rule on questions of admissibility and order the tape edited or redacted as necessary, the statements by defendant were admissible because they tended to refute defendant's contention that defendant was acting under duress through fear of retaliation. Even assuming that the evidence served no purpose other than to show defendant's propensity to commit murder or that the danger of undue prejudice outweighed the probative value, any error was harmless because the State introduced overwhelming, competent evidence that defendant planned the murder with his co-conspirator, shot the victim twice, helped chain and sink the victim in a river, and then robbed the victim and deposited the money into a bank account. Am Jur 2d, Evidence 535, 538. 4. Evidence and Witnesses 1619 (NCI4th) — audio tape recording — references to other acts — not edited out — harmless error There was no prejudicial error in a murder prosecution where the court admitted an unedited audio recording and transcript in which defendant described, with a racial epithet, an act of fellatio which had been performed on him. Given defendant's introduction of the comment, "I hate to admit it but. . ." and the surreptitious nature of the sexual act he describes, the jury could reasonably<page_number>Page 31</page_number> infer that defendant trusted Darnell, the person with whom he spoke, to safeguard his confidences and that in defendant's mind it was safe to be truthful about his involvement in the murder. However, assuming error, there was no reasonable possibility of a different verdict and no prejudice in light of the strength of the evidence of defendant's guilt. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 404(b). Am Jur 2d, Evidence 650. 5. Evidence and Witnesses 2898.5 (NCI4th) — cross-examination of defendant — prior convictions — no error There was no error in a murder prosecution in the cross-examination of defendant regarding prior convictions where the record contained no indication of bad faith on the part of the prosecutor. The basis for the second question was provided by defendant and was in evidence through a taped conversation involving defendant and, even assuming error with respect to a portion of the first question, there was no possibility of undue prejudice in light of defendant's denial and the overwhelming body and weight of relevant evidence presented by the State. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 609(a). Am Jur 2d, Witnesses 830, 834-836. 6. Evidence and Witnesses 2845 (NCI4th) — present recollection refreshed — use of notes — foundation — insufficient recollection The trial court did not err in a murder prosecution by allowing a State's witness to use notes he made immediately following his first conversation with defendant. Although defendant contended that the testimony violated N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 612 because the State failed to provide a foundation for the use of the notes, the contention that Rule 612 requires a witness to establish a foundation for the use of notes to refresh his memory is without merit. Rule 612 stands for nothing other than the requirement that an adverse party is entitled to production of the writing or object which a witness uses to refresh his or her memory. The statute nowhere imposes the requirement that the witness state that he cannot sufficiently recall a matter before he may use the writing. Am Jur 2d, Witnesses 773, 786.<page_number>Page 32</page_number> 7. Evidence and Witnesses 2845 (NCI4th) — present recollection refreshed — use of notes — foundation — insufficient recollection There was no error in a murder prosecution where a State's witness was allowed to refer to notes made following his first conversation with defendant. Although defendant contended that the witness's use of notes while testifying violated N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 803(5) because the witness failed to show an inability to remember the conversation recorded in the notes, the witness's use of notes during his testimony falls under the category of "present recollection refreshed" and the foundational questions raised by "past recollection recorded" are never reached. Am Jur 2d, Witnesses 773, 786. 8. Conspiracy 14 (NCI4th) — conspiracy to murder — charge against co-conspirator dismissed — not an acquittal A murder defendant's conspiracy conviction was not set aside where the charge against the only co-conspirator was subsequently dismissed pursuant to a plea bargain. Dismissal of a charge pursuant to a plea agreement does not constitute an acquittal, which would have required that defendant's conviction be set aside. Am Jur 2d, Conspiracy 24-26. <block_quote> Prosecution or conviction of one conspirator as affected by disposition of case against coconspirators. 19 ALR4TH 192.</block_quote>

1. Arbitration and Award 34 (NCI4th) — agreement to arbitrate — no provision for counsel fees — arbitration counsel fees prohibited The "agreement to arbitrate" did not include an entire stock purchase agreement but was confined to a section thereof captioned "Arbitration." Thus, where the arbitration section of the agreement contained no reference to counsel fees, the "agreement to arbitrate" did not "otherwise provide" for the inclusion of counsel fees in the arbitration award, and N.C.G.S. 1-567.11 prohibited the award of counsel fees for work performed in the arbitration proceeding. Am Jur 2d, Arbitration and Award 6, 14, 139. 2. Arbitration and Award 34 (NCI4th) — arbitration counsel fees — necessity for provision in arbitration agreement The language of N.C.G.S. 1-567.11 clearly reflects the legislative intent that counsel fees are not to be awarded for work performed in arbitration proceedings unless the parties specifically agree to and provide for such fees in the arbitration agreement. Am Jur 2d, Arbitration and Award 6, 139. 3. Statutes 5.8 (NCI3d) — general and specific statutes — control by specific statute Where one statute deals with a particular subject or situation in specific detail, while another statute deals with the subject in<page_number>Page 149</page_number> broad, general terms, the particular, specific statute will be construed as controlling absent a clear legislative intent to the contrary. Am Jur 2d, Statutes 257. 4. Arbitration and Award 34 (NCI4th) — arbitration counsel fees — applicable statute Since N.C.G.S. <cross_reference>6-21.2</cross_reference> is a statute of general applicability while N.C.G.S. 1-567.11 is a specific statute relating solely to arbitration, N.C.G.S. <cross_reference>6-21.2</cross_reference> does not apply to arbitration proceedings. Thus, both the arbitrator or arbitration panel and the superior courts upon confirmation are limited to applying only N.C.G.S. 1-567.11 in determining whether counsel fees should be or were properly awarded in an arbitration proceeding. Am Jur 2d, Arbitration and Award 6, 139; Statutes 257. 5. Arbitration and Award 34 (NCI4th) — arbitration award — no increase by court for counsel fees There is no provision or authority in N.C.G.S. 1-567.11 or elsewhere in the Arbitration Act allowing a court to increase an arbitration award by adding counsel fees not contained in the award. Am Jur 2d, Arbitration and Award 6, 139.

Pensions 1 (NCI3d) — judges — retirement system — purchase of credit There is nothing in N.C.G.S. <cross_reference>135-4</cross_reference>(f)(6), which gave plaintiff the right to purchase retirement credits based on military service, stating the time the right remains open, and it is not inconsistent for N.C.G.S. <cross_reference>135-4</cross_reference>(m) to require the right to be exercised within three years. Although N.C.G.S. <cross_reference>135-4</cross_reference>(f)(6) began with the phrase "Notwithstanding any other provision of this Chapter," which plaintiff contends excludes the application of N.C.G.S. <cross_reference>135-4</cross_reference>(m), the two subsections can be read so as to give effect to both, and such an interpretation is reinforced by legislative history. Am Jur 2d, Pensions and Retirement Systems 1738.

1. Evidence and Witnesses 3025 (NCI4th) — impeachment — limited to prior convictions The trial court did not err in a murder prosecution where a State's witness testified concerning conversations with defendant in jail by limiting defendant's cross-examination of that witness about prior bad acts to questions under N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 609 concerning prior convictions. Although defendant contends that he was not able to cross-examine the witness about his recent conversion to the pursuit of justice and his facility with deception, the testimony clearly indicates that defense counsel communicated to the jury the issue of the witness's credibility as effectively as if he had proceeded under N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 608. Am Jur 2d, Witnesses 910, 911. <block_quote> Construction and application of Rule <cross_reference>609</cross_reference>(a) of the Federal Rules of Evidence permitting impeachment of witness by evidence of prior conviction of crime. 39 ALR Fed 570.</block_quote> 2. Homicide 211 (NCI4th) — first degree murder — sufficiency of evidence — cause of death The trial court did not err by denying defendant's motion to dismiss a first degree murder prosecution for insufficient evidence that the shooting of the victim was the proximate cause of death. Although defendant contended that the victim's family and doctor determined that they would not pursue medical options available to them to keep the victim alive, the evidence presented was clearly sufficient to establish that the gunshot wounds inflicted by defendant were the proximate cause of the victim's death. Contradictions in the evidence are for the jury to resolve. Am Jur 2d, Homicide 432. 3. Appeal and Error 149 (NCI4th) — first degree murder — instructions — error favorable to defendant — no objection — no prejudice There was no plain error in a first degree murder prosecution where the court instructed the jury that the State must<page_number>Page 432</page_number> prove that defendant did not act in self-defense. Defendant failed to object at trial and derived the benefit of an instruction to which he was not entitled. Am Jur 2d, Appeal and Error 545.

1. Searches and Seizures 21 (NCI3d) — affidavit for search warrant — failure to show deliberate falsehoods or reckless disregard for truth Defendants did not show that an affidavit filed to support the issuance of a search warrant contained deliberate falsehoods or exhibited a reckless disregard for the truth or that the affiant was not acting in good faith so as to require suppression of the evidence seized pursuant to the warrant where defendants contended that the officer who applied for the warrant alleged (1) that an informant told another officer that she had seen a small, black four-door subcompact when she told him she had seen a black Mustang, (2) that the informant gave the officer a description of two men in the vehicle which was "very favorable" to defendants when she actually told him the two men were clean shaven and defendants had facial hair, and (3) that the informant told him the two men had a plastic container in their possession when she<page_number>Page 667</page_number> actually said that they were carrying a white gas can. A "small, black four-door subcompact" could be a description of a "black Ford Mustang," a plastic container could be a description of a "white gas can," and the officer could conclude that the description given by the informant was "very favorable" to defendants although she said they were clean shaven when they had facial hair. N.C.G.S. <cross_reference>15A-978</cross_reference>. Am Jur 2d, Searches and Seizures 65, 79. <block_quote> Propriety of considering hearsay or other incompetent evidence in establishing probable cause for issuance of search warrant. 10 ALR3d 359.</block_quote> 2. Arson and Other Burnings 13 (NCI4th) — attempted first degree arson — occupancy of dwelling not required Indictments charged defendants with attempted first degree arson in violation of N.C.G.S. <cross_reference>14-67</cross_reference> although they incorrectly recited that the charges were brought pursuant to N.C.G.S. <cross_reference>14-58</cross_reference>. Since it is unnecessary to prove that a dwelling house was occupied to support a conviction of attempted first degree arson under N.C.G.S. <cross_reference>14-67</cross_reference>, the evidence was sufficient to support defendants' conviction of attempted first degree arson even though it failed to show that a murder victim found in the dwelling was alive at the time of the attempted burning. Am Jur 2d, Arson and Related Offenses 15. 3. Evidence and Witnesses 1694 (NCI4th) — photographs of victim's body — relevancy to prove premeditation and deliberation A photograph showing the location of a murder victim's body when found and an autopsy photograph depicting a five-inch wound to the victim's neck were properly admitted in this first degree murder prosecution, notwithstanding defendant did not contest the identity or cause of death of the victim, since the photographs were relevant and material to prove premeditation and deliberation. Am Jur 2d, Homicide 417 et seq.<page_number>Page 668</page_number> 4. Criminal Law 105 (NCI4th) — discovery — unavailability of blood samples for testing by defendants — admissibility of grouping tests The results of blood grouping tests performed on samples taken from the interior of an automobile were not required to be excluded from evidence because all the blood taken from the automobile was consumed by the State's testing and none was left for testing by defendants since N.C.G.S. <cross_reference>15A-903</cross_reference>(e) only required the prosecution to furnish real evidence to the defense if it was available, none was available in this case, and there was no evidence of bad faith on the part of the State. Am Jur 2d, Depositions and Discovery 449. 5. Evidence and Witnesses 2209 (NCI4th) — blood grouping tests — reliability of procedures — waiver of right to voir dire Defendant waived any right he may have had to a voir dire hearing to establish the reliability of blood grouping procedures used by a forensic serologist where the serologist had been accepted by defendant as an expert and had already testified without objection about the experiments she had conducted to determine blood types when defendant objected to her testimony that the blood type of samples taken from a car were the same as decedent's blood type and asked for a voir dire. Am Jur 2d, Expert and Opinion Evidence 300. 6. Evidence and Witnesses 2209 (NCI4th) — blood grouping tests — effect of limited samples The inability of a serologist to perform additional testing due to the limited amounts of blood samples went to the weight and not the admissibility of her testimony as to the results of blood grouping tests. Am Jur 2d, Expert and Opinion Evidence 300. 7. Criminal Law 468 (NCI4th) — jury argument — blood testing — effect of limited samples — no impropriety The prosecutor's argument to the jury that the small amount of blood recovered from a car had nothing to do with the accuracy of the tests performed on the blood samples but only limited the number of tests that could be performed merely rebutted defendant's<page_number>Page 669</page_number> contention that the blood tests were inaccurate due to the limited amount of blood and was not improper. Am Jur 2d, Trial 307 et seq. 8. Arson and Other Burnings 29 (NCI4th); Burglary and Unlawful Breakings 59 (NCI4th); Homicide 232 (NCI4th) — murder, burglary, and attempted arson — acting in concert — sufficient evidence of defendant's guilt The evidence was sufficient to support defendant's conviction of first degree murder, first degree burglary and attempted first degree arson under the theory of acting in concert where it tended to show that defendant was driving an automobile accompanied by the codefendant on the night in question; defendant and the codefendant bought gasoline and placed it in a container for which they paid a deposit; the container was not returned to the owner; a witness saw the automobile, which defendant was driving that night, parked in the neighborhood of the victims' house and saw defendant and the codefendant leave the automobile and walk toward that house; thirty minutes before this time, there was nothing awry at the house; one hour later the front and back doors of the house had been vandalized, a safe and seventeen guns had been removed from the house, the murder victim had been shot and stabbed while in the house, gasoline had been poured around the house, and an attempt had been made to start a fire; a gasoline container similar to the one defendant and the codefendant were carrying was found in the house; and blood of the same type as that of the victim was found in the automobile occupied by defendant and the codefendant on the night of the crimes. <block_quote> Am Jur 2d, Arson and Related Offenses 55; Burglary 44 et seq.; Homicide 425 et seq.</block_quote> 9. Homicide 552 (NCI4th) — first degree murder — second degree murder instruction not required The trial court in a first degree murder case did not err in refusing to instruct the jury on second degree murder as to defendant Lemons where the evidence tended to show that each of the defendants either did all the acts necessary to be guilty of first degree murder or acted in concert or as an aider and abettor in<page_number>Page 670</page_number> doing such acts, and defendant Lemons relied on an alibi and did not otherwise contest the State's evidence. Am Jur 2d, Homicide 526. 10. Indigent Persons 27 (NCI4th) — denial of funds for private investigator — no error The trial court did not err in the denial of defendant's motion for funds to hire a private investigator in a first degree murder case where defendant alleged that the prosecutor furnished him with information that there were a number of suspects at the initial investigation of the case, and defendant introduced at the hearing a police report that an automobile which was not the vehicle defendant was driving was seen speeding away from the crime scene, since this evidence constituted only a mere hope or suspicion that favorable evidence was available. Am Jur 2d, Criminal Law 733, 750. 11. Homicide 489 (NCI4th) — premeditation and deliberation — lack of provocation — instruction supported by evidence There was sufficient evidence of lack of provocation in a first degree murder case to support the trial court's instruction that evidence of lack of provocation by the decedent could be considered in determining whether there was premeditation and deliberation by defendants where the jury could have found from the evidence that decedent was asleep in his bed when defendants broke into his home, and decedent was shot and stabbed by defendants as he came down the steps. Am Jur 2d, Homicide 500. 12. Evidence and Witnesses 3174 (NCI4th) — opinion as to consistency of statements The trial court did not err in allowing an officer to testify that statements made by a witness prior to trial were consistent with her trial testimony where the purpose of the officer's testimony was to show why the State had made a plea bargain with the witness and not to corroborate her testimony. Am Jur 2d, Witnesses 641 et seq.<page_number>Page 671</page_number> 13. Evidence and Witnesses 632 (NCI4th) — in-court identification — motion for voir dire too late The trial court did not err in the denial of defendant's motion for a voir dire hearing on a witness's in-court identification of defendant where the motion was made after the witness had already identified defendant before the jury. Am Jur 2d, Motions, Rules, and Orders 22-26. 14. Evidence and Witnesses 403 (NCI4th) — in-court identification — opportunity, attention and certainty A witness had the opportunity, attention and certainty required at the time of her initial viewing of defendants to support her in-court identification of one defendant where she testified that she was standing at the front fender of a car when defendants got out of the car; she noticed a white jug in one defendant's hand, and she conversed with defendants from only a few feet away; a street light was nearby and nothing blocked her view; and the witness did not hesitate in identifying defendants in the courtroom. Am Jur 2d, Evidence 367. 15. Criminal Law 1156 (NCI4th) — burglary — aggravating factor — armed with deadly weapon The trial court did not err in finding as an aggravating factor for first degree burglary that defendant was armed with a deadly weapon where there was evidence that defendant or a person with whom he was acting in concert used both a gun and a knife during the crime. Am Jur 2d, Criminal Law 598, 599. 16. Criminal Law 1102 (NCI4th) — attempted arson — aggravating factor — commission to cover up murder — sufficiency of evidence The evidence was sufficient to support the trial court's finding as a nonstatutory aggravating factor for attempted arson that such crime was committed to cover up a murder where the evidence tended to show that a house was burglarized, an occupant of the house was shot and stabbed to death, and the house was ransacked; the den floor was saturated with gasoline and a struck match was found on the floor; a plastic container was found in the<page_number>Page 672</page_number> den; and defendants bought gasoline and placed it in a similar plastic container shortly before the murder. Am Jur 2d, Criminal Law 598, 599. 17. Criminal Law 1126 (NCI4th) — attempted arson — aggravating factor — commission to cover up burglary and murder — convictions of joined offenses not used The rule that a sentence for one offense may not be aggravated by defendant's acts which form the gravamen of contemporaneous convictions of joined offenses was not violated by the trial court's finding as an aggravating factor for attempted arson that such crime was committed to cover up a first degree burglary and a first degree murder for which defendants were also convicted since the aggravating factor was based upon the motivation for the attempted arson and not upon any element or aspect of the burglary or the murder. Am Jur 2d, Criminal Law 598, 599.

1. Wills 53 (NCI3d) — devise to life tenants — use of "equal portions" and "respective" — tenants in common Where testator's will devised all of his lands "in equal portions" to his two nephews "for and during the terms of their natural lives," provided that "upon their deaths I give and devise their respective shares thereof in fee simple to their respective issue, who survive them, per stirpes," and further provided that if either nephew "shall die without issue surviving him the share of such deceased shall go to the other of my said two nephews for life and then to his issue in fee simple, per<page_number>Page 707</page_number> stirpes," the testator intended for his nephews to be tenants in common rather then joint tenants. The phrase "equal portions" evidenced an intent to create a tenancy in common rather than a joint tenancy, and the word "respective" emphasized testator's intent that vesting of the future interest should occur at the death of each life tenant rather than upon the death of both tenants. Am Jur 2d, Wills 1127, 1128, 1288. 2. Wills 35.1 (NCI3d) — devise to life tenants — contingent remainders — time of vesting Where testator's will devised all of his lands "in equal portions" to two nephews "for and during the terms of their natural lives," provided that "upon their deaths I give and devise their respective shares thereof in fee simple to their respective issue, who survive them, per stirpes," and further provided that if either nephew "shall die without issue surviving him the share of such deceased shall go to the other of my said two nephews for life and then to his issue in fee simple, per stirpes," the testator intended the contingent remainders to the surviving issue to vest upon the death of each of the life tenants rather than only upon the death of both life tenants. Thus, when the first life tenant died leaving issue, the contingent remainder of each lineal descendant of that life tenant vested. Am Jur 2d, Wills 1127, 1128; Estates 219, 220, 245. 3. Wills 35.2 (NCI3d) — doctrine of implied cross remainders — inapplicability The doctrine of implied cross remainders was inapplicable where the testator intended to devise his property so that as each life tenant died leaving issue the contingent remainder would vest in the surviving issue of that life tenant and did not intend to have a gift over of all the property at once. Am Jur 2d, Estates 230, 231, 245.

1. Evidence and Witnesses 1081 (NCI4th) — murder — incriminating statement in defendant's presence — silence — admissible The trial court did not err in a murder prosecution by admitting into evidence testimony that a statement had been made out of court in defendant's presence that defendant had participated in the shooting and defendant did not respond until some minutes later. The statement was properly admitted as an implied admission, and the trial court's instructions properly left to the jury the question of whether defendant's disavowal was a responsive denial or the product of self-serving cogitation. Am Jur 2d, Evidence 638. 2. Criminal Law 560 (NCI4th) — murder — out-of-court statement admitted — mistrial denied There was no error in denying a motion for a mistrial in a murder prosecution where the out-of-court statement on which the motion was based was properly admitted. Am Jur 2d, Trial 1955. 3. Appeal and Error 504 (NCI4th) — murder — failure to instruct on lesser included offense — invited error The trial court did not err in a murder prosecution by failing to instruct on the lesser included offense of second-degree murder where defendant foreclosed any inclination of the trial court to instruct on second degree murder. Am Jur 2d, Appeal and Error 776, 778, 810. 4. Criminal Law 798 (NCI4th) — murder — instructions — acting in concert — evidence sufficient The evidence in a murder prosecution supported an instruction on acting in concert where defendant's admission that, at the least, he knew that another man intended to shoot one of the victims and that he directed this other man to the location of the pistol is ample evidence of active encouragement and assistance to the perpetrator, as was his questioning of the<page_number>Page 720</page_number> other man's decision not to kill a witness. That witness's testimony that she saw defendant holding a small handgun as he and the other man left the house after the shootings corroborates evidence of defendant's presence and active participation in the shootings. Am Jur 2d, Trial 1077, 1228, 1281. 5. Homicide 258 (NCI4th) — murder — instructions — intentional use of deadly weapon — instruction given substantially as requested The trial court did not err in a murder prosecution in not giving the instruction on intentional use of a deadly weapon as defendant requested where the substance of the requested instruction, absent reference to the "sufficiency" of facts and inferences to sustain proof of premeditation and deliberation, was given more clearly by the trial court in instructions that kept inferences from the use of a deadly weapon separate from instructions regarding premeditation and deliberation. The trial court is not required to give requested instructions verbatim, even when they correctly state the law. Am Jur 2d, Trial 1092, 1094, 1098. 6. Criminal Law 823 (NCI4th) — murder — instructions — credibility of law enforcement officers — requested instruction denied The trial court did not err in a murder prosecution by refusing to give an instruction on the credibility of law enforcement officers. The trial court properly instructed the jury about witness credibility in general, focusing neither on law enforcement officers nor on any other class of witnesses. To have singled out any one class of witnesses might well have prompted the jury to be more critical of its credibility than that of other witnesses. Am Jur 2d, Trial 1092, 1093, 1094.