Volume 334 — North Carolina Reports

1. Constitutional Law 50 (NCI4th) — private examination statutes — constitutionality — standing to challenge Defendants had standing to challenge the constitutionality of North Carolina's former private examination statutes where the operation of N.C.G.S. <cross_reference>52-6</cross_reference> would invalidate a 1962 deed and directly deprive them of their bequests under a will. Although plaintiffs argue that defendants have no standing because they do not belong to the class prejudiced by the statute, the exception that allows an affected party to allege discrimination when no member of the class subject to the discrimination is in a position to do so applies here because both parties to the 1962 deed are now dead. Am Jur 2d, Constitutional Law 190. 2. Deeds 25 (NCI4th) — 1962 deed — private examination statutes — constitutionality North Carolina's former private examination statutes, N.C.G.S. <cross_reference>52-6</cross_reference> and N.C.G.S. <cross_reference>47-39</cross_reference>, are unconstitutional and noncompliance with those statutes will not serve as a basis to invalidate the 1962 deed in this case. The fact that the deed was executed prior to the express incorporation of the Equal Protection Clause into the State Constitution does not mandate a finding that such discrimination was constitutional at the time the deed was executed. Since the private examination statutes required unequal application of the law while serving no clearly discernable important governmental interest, they were unconstitutional at the time the deed was executed and will not presently be enforced. Am Jur 2d, Deeds 116-119.

1. Indigent Persons 14 (NCI4th) — failure to pay child support — civil contempt — incarceration — necessity for appointment of counsel Principles of due process embodied in the Fourteenth Amendment to the U.S. Constitution require that, absent the appointment of counsel, indigent civil contemnors may not be incarcerated for failure to pay child support arrearages. To the extent that the decision in Jolly v. Wright, <cross_reference>300 N.C. 83</cross_reference> (1980), is inconsistent with this holding, that decision is overruled. Am Jur 2d, Criminal Law 735, 977. 2. Indigent Persons 14 (NCI4th) — nonsupport — civil contempt — necessity for appointment of counsel — duties of trial court At the outset of a civil contempt proceeding for nonsupport, the trial court should assess the likelihood that the defendant may be incarcerated. If the court determines that the defendant may be incarcerated as a result of the proceeding, the court should then inquire into defendant's desire to be represented by counsel and his ability to pay for legal representation, and the court must appoint counsel to represent the defendant if he wishes representation but is unable due to his indigence to pay for such representation. Am Jur 2d, Criminal Law 735, 977.

1. Wills 3 (NCI3d) — signing of will — testator assisted by attorney who also witnessed — directed verdict for propounder — no error The trial court correctly directed a verdict for the propounders on the issue of whether a will's execution met the requirements of N.C.G.S. <cross_reference>31-3.3</cross_reference> where the testator, Mr. Jarvis, suffered a stroke in 1970 which rendered him partially paralyzed; he was right-handed and the stroke left that hand useless and his walking impaired; he was able to articulate only yes or no; he died in 1986 leaving a will dated 1977; Jarvis' attorney testified that Mr. and Mrs. Jarvis came to his office one or two weeks prior to the execution of the document; the attorney advised them as to a will and they authorized him to draft a document reflecting their wishes; when the Jarvises returned to his office, the attorney directed them to read the draft of the will; after Mr. Jarvis indicated that he had done so, the attorney read the document to him item by item and asked whether this was what he intended to do and whether<page_number>Page 141</page_number> he was satisfied; Jarvis indicated his assent to each item and affirmed that this was exactly what he wanted to do; the attorney called in his son, a law student, and asked Jarvis if the document he had just read was his Last Will and Testament and whether Jarvis wanted him and his son to be witnesses to the will; Jarvis again assented; the attorney asked whether Jarvis wanted the attorney to sign Jarvis' name to the will; Jarvis said that he did, then went around the attorney's desk, grasped the pen firmly in his left hand, and, guided by the attorney's hand on his, made his mark; the attorney then signed Jarvis' name on each page where Jarvis had made his mark; and the attorney and his son then signed as witnesses. Although caveators argue that the attorney's assisting Jarvis to form his mark and signing Jarvis' name beside each mark disqualified him as a witness, the validity of an instrument is not affected by the testator's receiving physical assistance in making his mark. Nothing in Chapter 31 indicates that a person assisting the testator either in forming his mark or by signing for him at his direction is thereby disqualified as a witness. Am Jur 2d, Wills 301. 2. Wills 21.4 (NCI3d) — execution of a will — evidence of undue influence — insufficient The trial court correctly directed a verdict for the propounders on the issue of whether a signature on a will was obtained by undue influence where the caveators did not identify the individual who allegedly asserted the invidious influence nor suggest how the manner in which the testator signed the document purporting to be his will manifested the intentions of anyone other than the testator himself. Am Jur 2d, Wills 479. 3. Wills 22 (NCI3d) — execution of a will — mental capacity — directed verdict improper The trial court should not have granted a directed verdict for propounders on the issue of testamentary capacity where the testimony of the testator's attorney, which recounted the circumstances under which the testator read and ultimately signed the will, tended to show that he had the mental capacity to make a will but other evidence showed that he did not. Whether the caveator's witnesses were credible and whether the evidence was<page_number>Page 142</page_number> sufficient to rebut the presumption of testamentary capacity were questions for the jury. Am Jur 2d, Wills 70, 106, 151, 164.

1. Criminal Law 78 (NCI4th) — pretrial publicity about unrelated murder — denial of venue change The trial court did not err in the denial of defendant's motions for a change of venue of his first-degree murder case based on pretrial publicity surrounding the killing of a deputy sheriff in the same county by another person less than one month before defendant's trial where defendant's evidence showed only that publicity about the deputy's killing and funeral was extensive and that the person charged with the deputy's killing, like defendant, was a black, teenage male; all twelve jurors stated unequivocally that their decision would be unaffected by anything they heard or read; defendant referred to no responses by jurors to voir dire questions that would indicate prejudice against him because of pretrial publicity or community sentiment surrounding the killing of the deputy; and defendant thus failed to meet his burden of proving that there was a reasonable likelihood that due to existing prejudice he would not receive a fair trial in the county. Am Jur 2d, Criminal Law 372 et seq. 2. Jury 220 (NCI4th) — capital case — jury voir dire — appropriateness of death or life sentence — refusal to allow questions — harmless error Assuming arguendo that the trial court erred in refusing to allow defendant to question prospective jurors in a first-degree murder trial concerning the circumstances in which the death penalty or life imprisonment would be appropriate, such error was harmless since the jury recommended and defendant received a sentence of life imprisonment. Am Jur 2d, Jury 289, 290. 3. Jury 215 (NCI4th) — belief in death penalty — challenge for cause properly denied The trial court did not abuse its discretion in the denial of defendant's challenges for cause of a prospective juror in a capital case where the juror stated during examination by<page_number>Page 149</page_number> the State that she would be able to return a verdict of life imprisonment; the juror then indicated during examination by defendant that the only time the death penalty was not appropriate was when the defendant acted in self-defense; the trial court rejected defendant's first challenge for cause and allowed the State to attempt to rehabilitate the juror; after the State clarified the role of mitigating circumstances, the juror stated that she would be able to consider each mitigating circumstance that she was instructed to consider and assured the court that she would be able to impose a sentence of life imprisonment; and the court thereafter denied defendant's renewed challenge for cause. Am Jur 2d, Jury 289, 290. 4. Evidence and Witnesses 1240 (NCI4th) — incriminating statement — no custodial interrogation — Miranda warnings not required Defendant's first incriminating statement during an interview by SBI investigators was not the result of custodial interrogation for Miranda purposes where the trial court found that defendant was told that he was free to leave on several occasions during the interview, that defendant did not ask to leave or request an attorney at any time, and that defendant was not placed under arrest after making his first statement but was taken home by the SBI investigators. Therefore, this statement was admissible even though defendant was not given the Miranda warnings. <block_quote> Am Jur 2d, Criminal Law 788 et seq.; Evidence 555-557, 614.</block_quote> <block_quote> What constitutes "custodial interrogation" within rule of Miranda v. Arizona requiring that suspect be informed of his federal constitutional rights before interrogation. 31 ALR3d 565.</block_quote>

1. Appeal and Error 360 (NCI4th) — record on appeal — denial of motion to add affidavits A motion by the State to amend the record on appeal by adding affidavits from the trial judge and the prosecutor<page_number>Page 468</page_number> is denied since the Supreme Court will refuse to consider affidavits which are not a part of the record made at trial. Am Jur 2d, Appeal and Error 515 et seq. 2. Constitutional Law 342 (NCI4th) — court's communication with prospective jurors — absence of defendant — harmless error While it was error for the trial court to address the prospective jurors outside the presence of defendant in this capital trial, the State met its burden of proving that the error was harmless beyond a reasonable doubt where the record affirmatively reveals that the trial judge went to the grand jury room merely to inform the prospective jurors that they were at break under his prior instructions. Am Jur 2d, Criminal Law 692 et seq., 901 et seq. <block_quote> Accused's right, under Federal Constitution, to be present at his trial — Supreme Court cases. <cross_reference>25 L.Ed.2d 931</cross_reference>.</block_quote> <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 cases. 33 ALR4th 429.</block_quote> 3. Constitutional Law 342 (NCI4th); Criminal Law 483 (NCI4th) — bailiff's communications with jury — direction by court — right to be present — no reversible error While the shorthand procedure adopted by the trial court in directing the bailiff to communicate on three occasions with venirepersons waiting to be called and on five occasions with the jury itself may run the risk of violating defendant's right to be present, that procedure did not constitute reversible error in this case where the trial court instructed the bailiff on four occasions to inform the jury to take or extend a recess during evidentiary hearings or discussions of legal issues and on the other four occasions to inform the jurors that they were on break and were to continue to abide by earlier instructions; defense counsel approved this shorthand procedure and declined the trial court's offer to be heard on this matter; these communications did not relate to defendant's guilt or innocence and did not implicate defendant's confrontation rights; and defendant's presence would not have been useful to his defense. <block_quote> Am Jur 2d, Criminal Law 692 et seq., 901 et seq.; Trial 1000-1004.</block_quote><page_number>Page 469</page_number> 4. Criminal Law 793 (NCI4th); Homicide 396 (NCI4th) — first-degree murder — acting in concert — intent — failure to give requested instruction The trial court did not err by failing to give defendant's requested instruction in a prosecution for three first-degree murders that "[w]here a defendant is charged on a theory of acting in concert for crimes requiring a specific intent, that intent must be shown as to each defendant," where the trial court incorporated an acting in concert instruction into each element of the crimes charged; the instructions given by the court clearly required the jury to find that defendant herself, acting either alone or with a codefendant, intended to kill the victims; the instructions also directed the jury that it could consider evidence of defendant's mental condition as it related to the question of intent; and there was nothing contained in the instruction requested by defendant which was not conveyed to the jury through the instructions given by the trial court. Am Jur 2d, Homicide 496, 497; Trial 723. 5. Appeal and Error 504 (NCI4th) — expert testimony — legal term of art — invited error Any error in the admission of testimony by defendant's psychiatric expert using the legal term of art "duress" and in the incorporation of the expert's testimony into the closing arguments of both defendant and the prosecution was invited error, and defendant cannot complain of this error on appeal, where defendant herself introduced this testimony, and defendant incorporated the testimony into her closing arguments and did not object to the State's incorporation of the testimony into its closing argument. Am Jur 2d, Appeal and Error 713-722. 6. Burglary and Unlawful Breakings 151 (NCI4th) — burglary — intent — requested instruction — inaccurate statement of law The trial court did not err by refusing to give defendant's requested instruction that the jury could consider defendant's mental ability in connection with her ability to form "the specific intent to commit burglary" since it was not an accurate statement of the law because the specific intent element of burglary<page_number>Page 470</page_number> relates solely to the intent to commit a felony within the dwelling place. Am Jur 2d, Burglary 69. 7. Burglary and Unlawful Breakings 153 (NCI4th); Homicide 678 (NCI4th) — diminished capacity — instruction for murder — failure to instruct for burglary — absence of prejudice An instruction on the defense of duress will not normally encompass the diminished capacity defense. Assuming that an instruction on diminished capacity as a defense to burglary would have been appropriate in light of the evidence presented in this case, the trial court sufficiently instructed the jury on this defense when it gave a diminished capacity instruction in relation to the charge of first-degree murder since, in order for the jury to convict defendant of burglary, it was required to find that defendant intended to commit the named felony of first-degree murder at the time of the breaking and entering, and had the jury accepted that defense to the murder charge, it would also have been unable to convict defendant of burglary. Am Jur 2d, Burglary 69; Homicide 516. <block_quote> Accused's right, in homicide case, to have jury instructed as to both unintentional shooting and self-defense. 15 ALR4th 983.</block_quote> 8. Evidence and Witnesses 2479 (NCI4th) — sequestration order — refusal to except mental health witness — no abuse of discretion The trial court did not abuse its discretion by denying defendant's request to have her expert mental health witness view a portion of defendant's testimony because a reciprocal sequestration order had been entered where the motion to sequester witnesses was originally made by defendant; the trial court allowed both sides to except certain persons from the sequestration order; and defendant did not ask at the time the order was entered to have her expert excepted therefrom. Am Jur 2d, Trial 61.<page_number>Page 471</page_number> 9. Burglary and Unlawful Breakings 165 (NCI4th) — first-degree burglary — felonious intent — failure to submit misdemeanor breaking or entering There was no evidence that defendant did not have a felonious intent at the time she broke into and entered the victims' residence so as to require the trial court to submit misdemeanor breaking or entering as a lesser included offense of first-degree burglary where all the evidence showed that defendant and a companion entered the victims' home with the intent to kill the family members residing therein, and the question for the jury was whether defendant did so willingly. Am Jur 2d, Burglary 69. 10. Criminal Law 803 (NCI4th) — lesser included offense — effect of refusing opportunity for instruction A defendant may not decline an opportunity for instructions on a lesser included offense and then claim on appeal that failure to instruct on the lesser included offense was error. N.C.G.S. <cross_reference>15A-1443</cross_reference>(c). Am Jur 2d, Trial 876 et seq. <block_quote> Propriety of lesser-included-offense charge to jury in federal criminal case — general principles. 100 ALR Fed. 481.</block_quote> <block_quote> Lesser-related state offense instructions: modern status. 50 ALR4th 1081.</block_quote> 11. Criminal Law 34 (NCI4th); Homicide 118 (NCI4th) — first-degree murder — testimony showing duress — inadmissibility The trial court in a first-degree murder case did not err in striking defendant's testimony that she was "scared" and "frightened" when her companion told her to hold the victims at gunpoint where defense counsel stated that the testimony was offered solely for the purpose of proving duress or coercion, since duress is not a defense to murder, and the testimony was thus not admissible to prove duress. Am Jur 2d, Criminal Law 148. <block_quote> Coercion, compulsion, or duress as defense to criminal prosecution. 40 ALR2d 908.</block_quote><page_number>Page 472</page_number> 12. Constitutional Law 182 (NCI4th) — first-degree murder — premeditation and deliberation and felony murder — no double jeopardy Defendant's conviction of first-degree murder under theories of accomplice liability based on (1) premeditation and deliberation and (2) felony murder did not violate defendant's right against double jeopardy. Am Jur 2d, Criminal Law 279 et seq. 13. Conspiracy 38 (NCI4th) — conspiracy to commit burglary — sufficiency of evidence The evidence was sufficient to support defendant's conviction of a separate conspiracy to commit burglary in addition to conspiracy to commit murder where it tended to show that, weeks before the victims were killed, defendant helped her boyfriend construct a note left at the murder scene; on the evening prior to the murders, the boyfriend told defendant of his intent to kill his wife's family; on the morning of the murders, the boyfriend woke defendant and asked her if she was ready to go; defendant drove with her boyfriend by the house occupied by the wife's family, counted how many lights were on inside, and walked to the house with her boyfriend; and defendant held the firearms while her boyfriend cut the phone lines and broke in the door. Am Jur 2d, Conspiracy 29, 30. Criminal conspiracy between spouses. 74 ALR3d 838. 14. Homicide 696 (NCI4th) — felony murder — failure to instruct on duress — duress instruction for underlying felony — no plain error The trial court did not commit plain error by failing to instruct the jury on duress as a defense to felony murder predicated upon burglary where the court instructed the jury on duress as a defense to burglary; the jury was instructed that it must find defendant guilty of burglary in order to find her guilty of felony murder predicated upon burglary; and the jury thus could not have found defendant guilty of felony murder had it not found her guilty of burglary due to the defense of duress. Am Jur 2d, Homicide 514.<page_number>Page 473</page_number> 15. Criminal Law 680 (NCI4th) — capital case — mitigating circumstances — peremptory instructions A trial court should, if requested, give a peremptory instruction for any mitigating circumstance, whether statutory or nonstatutory, if it is supported by uncontroverted evidence. Am Jur 2d, Criminal Law 628. 16. Criminal Law 680 (NCI4th) — capital case — mitigating circumstances — uncontroverted evidence — refusal to give peremptory instructions — prejudicial error A defendant sentenced to death for each of three convictions of first-degree murder is entitled to a new sentencing hearing where the trial court refused to give requested peremptory instructions on various nonstatutory mitigating circumstances supported by uncontroverted evidence, and it is impossible to determine what effect this error had on the sentencing decision. Am Jur 2d, Criminal Law 628. 17. Criminal Law 1333 (NCI4th) — capital case — three aggravating circumstances — separate evidence supporting each — required instruction The trial court did not err in submitting as aggravating circumstances for first-degree murder that the offense was (1) especially heinous, atrocious, or cruel, (2) committed during a burglary, and (3) part of a course of conduct which included the commission by defendant of other crimes of violence against other persons since there was separate evidence to support each of these aggravating circumstances. However, the trial court should have instructed the jury in such a way as to ensure that jurors would not use the same evidence to find more than one aggravating circumstance. Am Jur 2d, Criminal Law 598 et seq.

1. Criminal Law 76 (NCI4th) — pretrial publicity — change of venue When the trial court determines that there exists in the county in which the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial, the court must either transfer the case to another county or order a special venire. A trial should be held in a county different from the one in which a crime was allegedly committed only in rare cases, however, because of the significant interest of county residents in seeing criminals who commit local crimes being brought to justice. Am Jur 2d, Criminal Law 378. <block_quote> Pretrial publicity in criminal case as ground for change of venue. 33 ALR3d 17.</block_quote> <block_quote> Pretrial publicity in criminal case as affecting defendant's right to fair trial — federal cases. <cross_reference>10 L.Ed.2d 1243</cross_reference>.</block_quote><page_number>Page 533</page_number> 2. Criminal Law 76, 77 (NCI4th) — pretrial publicity — change of venue — test and burden of proof The test for determining whether venue should be changed is whether it is reasonably likely that prospective jurors would base their decision in the case upon pretrial information rather than the evidence presented at trial and would be unable to remove from their minds any preconceived impressions they might have formed. Defendant has the burden of proving the existence of a reasonable likelihood that he cannot receive a fair trial because of prejudice against him in the county in which he is to be tried. Am Jur 2d, Criminal Law 378. <block_quote> Pretrial publicity in criminal case as ground for change of venue. 33 ALR3d 17.</block_quote> <block_quote> Pretrial publicity in criminal case as affecting defendant's right to fair trial — federal cases. <cross_reference>10 L.Ed.2d 1243</cross_reference>.</block_quote> 3. Criminal Law 76 (NCI4th) — pretrial publicity — change of venue — discretion of court The determination of whether a defendant has carried his burden of showing that pretrial publicity precluded him from receiving a fair trial rests within the trial court's sound discretion. The trial court has discretion, however, only in exercising its sound judgment as to the weight and credibility of the information before it, including evidence of such publicity and jurors' averments that they were ignorant of it or could be objective in spite of it. When the trial court concludes, based upon its sound assessment of the information before it, that the defendant has made a sufficient showing of prejudice, it must grant defendant's motion as a matter of law. Am Jur 2d, Criminal Law 378. <block_quote> Pretrial publicity in criminal case as ground for change of venue. 33 ALR3d 17.</block_quote> <block_quote> Pretrial publicity in criminal case as affecting defendant's right to fair trial — federal cases. <cross_reference>10 L.Ed.2d 1243</cross_reference>.</block_quote> 4. Criminal Law 79 (NCI4th) — word-of-mouth publicity — denial of change of venue Defendant failed to carry his burden of showing any reasonable likelihood that pretrial, word-of-mouth publicity<page_number>Page 534</page_number> might have affected the fairness of his trial for first-degree murder, rape, burglary, kidnapping and aggravated assault, and the trial court properly denied defendant's motion for a change of venue, where counsel for the State and for the defense scrupulously asked members of the venire whether they had read or heard about this case from any source; those who admitted to having any difficulty putting aside previously formed opinions were excused for cause; and those who remained and were impaneled stated without exception either that they had formed no opinion or that they could put what they had heard or read out of their minds and listen objectively to the evidence before them. Am Jur 2d, Criminal Law 378. <block_quote> Pretrial publicity in criminal case as ground for change of venue. 33 ALR3d 17.</block_quote> <block_quote> Pretrial publicity in criminal case as affecting defendant's right to fair trial — federal cases. <cross_reference>10 L.Ed.2d 1243</cross_reference>.</block_quote> 5. Jury 142, 153 (NCI4th) — capital case — prospective jurors — voir dire — when death penalty appropriate — refusal to permit questions The trial court did not abuse its discretion in refusing to permit defendant to ask prospective jurors in a capital trial questions regarding when in their opinion the death penalty would be appropriate, including questions as to whether they would find it impossible to vote for life imprisonment where torture or rape had been involved or whether their general approval of the death penalty would interfere with their ability to consider the existence of mitigating circumstances, where defendant was consistently permitted to ask jurors whether they would automatically vote for the death penalty upon conviction, and none of the rejected questions amounted to a proper inquiry as to whether the jury could follow the law. Am Jur 2d, Jury 202. 6. Jury 203 (NCI4th) — prospective jurors — knowledge about case — denial of challenges for cause The trial court did not err in the denial of defendant's challenges for cause of a prospective juror who knew the victims<page_number>Page 535</page_number> and had heard and read about the case and another prospective juror who owned a store near the crime scene, knew defendant's family, and had heard much discussion about the crimes, where these two potential jurors were thoroughly questioned with regard to whether their familiarity with the case might taint their ability to be fair and impartial in rendering a verdict, and their testimony demonstrated a conscientious and deliberate resolve to put familiarity and possible prejudice aside and to abide by the law and the trial court's instructions. Am Jur 2d, Jury 276. 7. Jury 227 (NCI4th) — death penalty views — equivocation — excusal for cause The trial court did not err in allowing the State's challenge for cause of a prospective juror because of his capital punishment views where the voir dire answers of the juror showed his unwavering reluctance to recommend the death penalty under any circumstances, and the record shows that any equivocation in the juror's answers resulted from his expressed, conscientious desire to do his duty as a juror and to follow the trial court's instructions in the face of recognizing his personal inability to impose the death penalty. Am Jur 2d, Jury 289, 290. <block_quote> Comment note — beliefs regarding capital punishment as disqualifying juror in capital case — post-Witherspoon cases. 39 ALR3d 550.</block_quote> 8. Homicide 556 (NCI4th) — felony murder based on first-degree burglary — intent to rape — instructions on lesser offenses not required In a felony murder prosecution based on the felony of first-degree burglary wherein the State chose to rely upon rape for the felonious intent element of burglary, the State's evidence was positive and uncontradicted as to each element of burglary based on the intent to commit rape so that the trial court did not err by refusing to submit to the jury the lesser included offenses of second degree murder and involuntary manslaughter where the evidence tended to show that, although defendant first demanded money when he entered the victims' home, almost immediately afterwards he ordered the female victim to disrobe and raped her. This was ample<page_number>Page 536</page_number> evidence from which the jury could infer that defendant entered the victims' home with the intent to commit rape, and evidence that defendant also intended to commit other offenses against the victims, including larceny, does not conflict with the evidence that he intended to commit rape. Am Jur 2d, Homicide 525. 9. Homicide 199 (NCI4th) — felony murder — heart attack by victim — proximate cause of death The State's evidence was sufficient to show that defendant's actions were the proximate cause of the victim's death so as to support his conviction of felony murder where it tended to show that defendant broke into and entered the victim's home, attacked the victim and his wife with a dust mop, and took a gun away from the wife; the seventy-one-year-old victim collapsed and died; the victim suffered from a badly diseased heart, emphysema, fibrosis of the lungs, a malignant lung tumor, and high blood pressure; and a pathologist opined that the cause of the victim's death was acute heart failure induced by multiple blunt impact injuries to the hands and arms, although such defensive wounds, which could have been caused by a mop handle, would not be fatal to a healthy person. Am Jur 2d, Homicide 74, 75. 10. Criminal Law 775 (NCI4th) — voluntary intoxication — insufficient evidence to require instruction The trial court did not err by refusing to instruct on voluntary intoxication where there was some evidence that defendant had drunk "a right smart amount" of beer and liquor at a party and had smoked crack cocaine with a companion on the evening of the crimes; the only evidence that defendant was in any way affected by his drinking and smoking of crack was defendant's statement to officers that he did not deny having committed the crimes but had no memory of having done so; and a victim and the man with whom defendant smoked crack both testified that defendant appeared to be rational and showed no other physical signs of intoxication. Am Jur 2d, Homicide 131.<page_number>Page 537</page_number> 11. Evidence and Witnesses 315 (NCI4th) — defendant's rape of second victim — admissibility to show identity, motive and intent — probative value Evidence of defendant's rape of a second victim a few hours after his rape of the victim in this case was admissible to show identity, motive and intent, and the probative value of such evidence was overwhelming and not outweighed by the danger of unfair prejudice, where defendant was identified by both victims; both victims identified the car in which each was kidnapped; both victims were forced to accompany defendant at gunpoint; both were raped in the back seat of the car; and both were forced out of the car and abandoned in a rural area. In addition, the second victim's testimony was probative as to defendant's defense of voluntary intoxication. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rules 403, 404(b). Am Jur 2d, Rape 71. <block_quote> Admissibility, in rape case, of evidence that accused raped or attempted to rape person other than prosecutrix. 2 ALR4th 330.</block_quote> 12. Criminal Law 1199 (NCI4th) — sentencing — non-capital felonies — "catchall" mitigating circumstance found by jury for capital crime — erroneous adoption by court The trial court erred by adopting the "catchall" mitigating circumstance found by the jury for the capital crime of first-degree murder when imposing sentences for kidnapping, aggravated assault and armed robbery without indicating in the record its conclusion as to exactly what the circumstance denoted, since the trial court could not have known what mitigating evidence the jury considered in finding this circumstance in the capital case and thus could not have given the sentencing decision in the non-capital felony cases the individualized consideration to which defendant is entitled under the Fair Sentencing Act. Am Jur 2d, Criminal Law 599.

1. State 4 (NCI3d) — condemned land not needed for highway purposes — statutory rights of original owners — waiver of DOT's sovereign immunity In enacting the statutory scheme set forth in N.C.G.S. <cross_reference>136-19</cross_reference> (1986) which empowers the DOT to acquire title to land that it deems necessary for the construction or maintenance of roads and provides that, when the DOT later determines that a parcel is not needed for highway purposes, first consideration shall be given to any offer to repurchase by the original owners and their assigns, the legislature implicitly waived the DOT's sovereign immunity to the extent of the rights afforded in N.C.G.S. <cross_reference>136-19</cross_reference>. Am Jur 2d, Eminent Domain 171. 2. Declaratory Judgment Actions 7 (NCI4th) — condemned land not needed for highway purposes — price of reconveyance to original owner — justiciable controversy A justiciable controversy existed so as to permit plaintiffs' declaratory judgment action for a determination pursuant to N.C.G.S. <cross_reference>136-19</cross_reference> (1986) of the price at which the DOT must reconvey to them land which the DOT previously took by eminent domain but no longer needs for highway purposes because litigation over the price appears unavoidable where the DOT offered the property to plaintiffs on 6 January 1989; plaintiffs made a counteroffer on 12 September 1989 which was rejected by the DOT when it raised its asking price in October 1989; the DOT stated that its offer would terminate on 8 November 1989; extensive efforts taken to appraise the property and to negotiate with plaintiffs demonstrate that the DOT has been consistently moving toward an eventual sale of the property; and there is no indication that the parties will agree on a price for the property. Although DOT regulations prohibit the sale of unneeded land to the original owner unless the sale is first approved by the DOT, the Council of State, and the Governor, none of these parties has approved a sale to plaintiffs, and the property has not been declared<page_number>Page 651</page_number> unnecessary by the DOT, these contingencies and possibilities do not made the case nonjusticiable. Am Jur 2d, Declaratory Judgments 25-41. 3. Eminent Domain 6 (NCI4th) — condemned land not needed by DOT — price of reconveyance to original owner When land previously condemned by the DOT was no longer needed for highway purposes, N.C.G.S. <cross_reference>136-19</cross_reference> (1986) required the DOT to permit the original owner or his assigns to repurchase the land for the initial award plus interest and the cost of any improvements rather then for the fair market value, since the legislature did not intend for the state to profit from the appreciation of condemned land due to the very public improvements accomplished by the condemnation but intended to return the parties to the positions they would have been in if the DOT had not originally taken more land than was necessary. Am Jur 2d, Eminent Domain 142.