Volume 335 — North Carolina Reports

Evidence and Witnesses 1252 (NCI4th) — in-custody interrogation — ambiguous invocation of right to counsel — clarification by questions — admissibility of incriminating statements Defendant did not invoke her right to counsel when, in response to warnings as to her Miranda and juvenile rights, she asked the interrogating officer whether she needed a lawyer where the officer responded that he could not tell her whether she needed a lawyer but was merely advising her of her rights to a lawyer; the officer asked whether defendant understood each of the rights explained to her and defendant answered affirmatively; defendant answered "Yes" when asked if she wished to answer questions; defendant responded affirmatively when asked whether she wished to answer questions without a lawyer and without her parents, guardian or custodians being present; and defendant then made incriminating statements about the setting of a fire which killed her grandparents. Defendant's inquiry constituted an ambiguous or equivocal invocation of her right to counsel which was clarified by her responses to the narrow questions posed by the officer, and those responses made it clear that defendant was not asking for the assistance of counsel. Therefore, defendant's incriminating statements were admissible in her trial for first-degree murder where the trial court found that the statements<page_number>Page 121</page_number> were made freely, voluntarily and understandingly after defendant waived her Miranda and juvenile rights. Am Jur 2d, Criminal Law 732 et seq., 967 et seq. <block_quote> What constitutes assertion of right to counsel following Miranda warnings — state cases. 83 ALR4th 443.</block_quote>

Constitutional Law 166 (NCI4th); Homicide 5 (NCI4th) — year and a day rule — abrogation between crime and death — depriving defendant of rule — ex post facto violation Depriving defendant of the defense of the "year and a day rule" based on the prospective abrogation of that rule by judicial action in State v. Vance, <cross_reference>328 N.C. 613</cross_reference> (1991), violates the prohibition against ex post facto laws where the murderous acts occurred prior to the abrogation and the victim's death occurred after the abrogation but more than a year and a day after the murderous acts. If defendant is prosecuted for murder based on abrogation of the "year and a day" rule subsequent to defendant's assault on the victim but prior to the time the victim died, he is deprived of a defense that was allowed by the law in effect at the time of his murderous acts, and consequently his conviction could be obtained on less evidence than was required of the State at the time of those acts. U.S. Const. art. I, 10; N.C. Const. art. I, 16. Am Jur 2d, Constitutional Law 634 et seq.; Homicide 14. <block_quote> Homicide as affected by lapse of time between injury and death. 60 ALR3d 1323.</block_quote> <block_quote> Supreme Court's views as to what constitutes an ex post facto law prohibited by Federal Constitution. <cross_reference>53 L.Ed.2d 1146</cross_reference>.</block_quote>

Judges, Justices, and Magistrates 36 (NCI4th) — censure of superior court judge — conduct prejudicial to administration of justice A superior court judge is censured for conduct prejudicial to the administration of justice that brings the judicial office into disrepute for violations of Canons 2A and 2B of the N.C. Code of Judicial Conduct based upon findings supported by uncontroverted evidence that the judge gave legal advice and counsel to an individual with regard to her discharge from employment with the Iredell County DSS, undertook in his official capacity to intervene on her behalf, and conveyed and permitted others to convey the impression that the discharged individual had special influence with him. However, the judge's conduct did not rise to the level of willful misconduct in office. Am Jur 2d, Judges 19.

Appeal and Error 8 (NCI4th) — waiver of service of notice of appeal — jurisdiction of Court of Appeals Plaintiff waived service of notice of defendants' appeal by not raising the issue by motion or otherwise and by participating without objection in the appeal, and the Court of Appeals thus had jurisdiction of the appeal and should have considered the case on its merits. Am Jur 2d, Appeal and Error 316 et seq.<page_number>Page 232</page_number>

1. Evidence and Witnesses 1278 (NCI4th) — murder — defendant's statement — knowing waiver of rights The trial court did not err in a noncapital first degree murder prosecution by determining that defendant waived his rights knowingly, intelligently and voluntarily where the evidence showed that defendant had only a third-grade education in Vietnam; there was no evidence that he had had any formal training in English or that he was required to speak it at his job; although an interpreter was provided who was fluent in both Vietnamese and English, the defendant's native language was Dega, the language of the Montagnard region of Vietnam; defendant had not been placed under arrest, nor had he been handcuffed, shackled, or restrained in any way when the statement was given; when the waiver of rights form was read to defendant both in English and in Vietnamese, he was asked if he understood his rights and he answered "yes" in English; defendant did not indicate at any time that he did not understand the questions; and a review of the written transcript of the statement itself indicates that defendant was able to respond logically and appropriately to the questions presented to him in English. Am Jur 2d, Criminal Law 797; Evidence 555-557, 614. 2. Evidence and Witnesses 1113 (NCI4th) — murder — Montagnard defendant — statements made through interpreter — officer's testimony The trial court did not err in a noncapital murder prosecution by admitting a detective's testimony concerning statements<page_number>Page 354</page_number> made on defendant's behalf by his interpreter where this was not a situation in which the defendant and the questioning officer found each other to be unintelligible; the transcript shows that, for the most part, both defendant and Detective Roseman communicated in English; the only portion of Roseman's testimony that concerned statements elicited with the assistance of the interpreter was the portion concerning the circumstances surrounding the theft of defendant's automobile and the victim's attitude toward defendant's girlfriend; in both cases defendant and Detective Roseman were able to continue the interview in English after the interpreter briefly clarified the subject matter of the questions for defendant; this case did not involve the agency issues discussed in State v. Felton, <cross_reference>330 N.C. 619</cross_reference>; and, assuming that it did, defendant has not made a sufficient showing to rebut the presumption of agency that arises when an accused accepts the benefit of the proffered translation to make a voluntary statement. <block_quote> Am Jur 2d, Evidence 597 et seq; Homicide 337 et seq.</block_quote> 3. Evidence and Witnesses 2850 (NCI4th) — murder — statements made by defendant — officer's use of transcript of recording to refresh recollection — no error The trial court did not err in a murder prosecution by allowing a detective to use the written transcription of defendant's tape recorded statements to refresh his recollection of statements made by defendant. There was no indication that the detective was not able to rely primarily on his own memory of events in giving his testimony. Am Jur 2d, Witnesses 456. 4. Evidence and Witnesses 2859 (NCI4th) — murder — defendant's statements — officer's use of transcript of recording to refresh recollection — recording not introduced — no error The trial court did not err in a noncapital first-degree murder prosecution by denying defendant's request to review the tape recording of his statement or by allowing a detective to testify as to statements contained therein without first introducing the recording into evidence. The detective used the transcript of the recorded statement to refresh his personal recollection of defendant's responses to the questions asked;<page_number>Page 355</page_number> the best evidence rule does not apply to a document that serves only to refresh a witness' memory and is not offered into evidence. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 1002. Am Jur 2d, Witnesses 462. 5. Homicide 256 (NCI4th) — first-degree murder — premeditation and deliberation — evidence sufficient The trial court did not err in a noncapital first-degree murder prosecution by denying defendant's motion to dismiss where the evidence presented in the present case clearly supports the inference that the crime was committed in a premeditated and deliberated manner in that the mattress in the victim's bedroom had bullet holes in it; slugs and shell casings matching those found in the vicinity of the corpse were found in the bedroom; there were bloodstains on the screen door of the apartment; this evidence indicates that the killing was done in the apartment and that quite likely the victim was in his bed, perhaps asleep when the first shots were fired; the victim sustained thirty-three bullet wounds all over his body; some of the entry wounds were in the victim's back, suggesting that he was trying to escape as he was being shot; the victim's body was found near Raleigh, more than one hundred miles away from the likely scene of the killing; near the body were garbage bags that contained expended shell casings fired from the same weapon that was used in the Charlotte apartment; personal effects and clothing of the victim were found in the vicinity; and it thus appears that the perpetrator, upon completion of his crime, attempted to conceal his activities by collecting and disposing of the evidence in a remote spot far from the scene of the killing. Am Jur 2d, Homicide 437 et seq. 6. Homicide 226 (NCI4th) — first-degree murder — evidence of defendant's identity — sufficient There was substantial evidence to support the inference that defendant was the perpetrator of a first-degree murder where the evidence showed that the victim and defendant were roommates; when defendant's girlfriend visited their apartment shortly after the time of the victim's death, defendant offered inconsistent accounts of the victim's whereabouts; the killing was shown to have taken place about the time that<page_number>Page 356</page_number> defendant was normally at work, but was not; the victim's body was found far from defendant's home, but in a location with which defendant would have been familiar, having worked nearby in prior years; defendant drove the victim's car and was in possession of the victim's watch after the crime; there was evidence that the victim had never previously allowed even his closest friend to drive his car; defendant stated that he had been in exclusive possession of the vehicle during the time period of the killing and blood samples matching the victim's own were found in the trunk of the car; defendant was shown to have owned a weapon of a make and caliber consistent with the weapon that inflicted the victim's wounds; and there was evidence of some hostility between defendant and the victim concerning defendant's relationship with Mary Ann Mirelez. Am Jur 2d, Homicide 435. 7. Searches and Seizures 150 (NCI4th) — first-degree murder — victim's car — released from custody — no denial of due process There was no violation of a first-degree murder defendant's due process rights where a detective had the victim's automobile towed to the law enforcement center after noticing what appeared to be bloodstains on the bumper and within the trunk of the automobile; defendant's counsel requested the results of a comparison of the car's tire treads to casts made at the location where the victim's body was found; no such comparison had been made; the vehicle had been released from custody; and the tires had been changed. The rules concerning the safekeeping of potential evidence were violated; however, the investigating officers at the site where the body was found did not make plaster casts of all the tracks found at that location, so that the absence of a match would have been only marginally exculpatory. Defendant did not allege or demonstrate bad faith by the police in the release of the automobile and the exculpatory value of any tests defendant wished to perform was speculative at best. Am Jur 2d, Searches and Seizures 212. 8. Evidence and Witnesses 1700 (NCI4th) — first-degree murder — autopsy photographs of victim — admissible The trial court did not err in a first degree murder prosecution by admitting two autopsy photographs of the victim<page_number>Page 357</page_number> where the photographs were used to show the nature and extent of the wounds sustained by the victim; they were relevant to show not only the cause of death, but also as a means of proving the premeditation and deliberation elements of first-degree murder; there is no indication that the jury was subjected to unnecessary or excessive descriptions of the victim's injuries; and the context in which the photographs were introduced does not suggest that the purpose was to inflame the passions of the jury. Am Jur 2d, Evidence 791. 9. Evidence and Witnesses 216 (NCI4th) — murder — prior possession of rifle — murder weapon not identified — relevant There was no error in a murder prosecution in the admission of testimony that defendant had been seen in possession of a black rifle with a clip on the bottom and "a long handle that pulled back" where no murder weapon was produced at trial, but a federal firearms form was introduced which showed that an individual who identified himself as defendant purchased a .22 caliber semiautomatic rifle which a fifteen-round clip and retracting stock, and the pathologist indicated that the victim's wounds had been caused by a .22-caliber weapon. When no weapon is found in a defendant's possession at the time of his arrest or thereafter, testimony that defendant had once owned or possessed a weapon becomes especially relevant. Am Jur 2d, Evidence 272. 10. Evidence and Witnesses 216 (NCI4th) — murder — testimony that defendant possessed rifle — relevant There was no error in a murder prosecution where a witness testified that he had attempted to fire a gun owned by defendant which used small bullets during the time he had been defendant's roommate. The murder weapon was not produced at trial but the pathologist testified that the victim's wounds had been caused by a .22 caliber weapon. Am Jur 2d, Evidence 272. 11. Evidence and Witnesses 221 (NCI4th) — murder — subsequent possession of victim's property — relevant There was no error in a first-degree murder prosecution in the introduction of testimony that the witness had never<page_number>Page 358</page_number> seen defendant drive the victim's car prior to the day he was arrested, had not known the victim to loan his car to anyone, and had never known defendant to own a watch where the defendant was driving the victim's car and had the victim's watch in his pocket when he was questioned. Testimony concerning defendant's sudden and unprecedented possession of the victim's personal property immediately after the victim's murder is relevant to the issue of whether defendant was involved in the killing; however, assuming error under the balancing test of N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 403, defendant did not show a reasonable possibility that a different result would have been reached at trial had the error not occurred. Am Jur 2d, Evidence 278 et seq. 12. Searches and Seizures 4 (NCI4th) — murder — search of victim's automobile in defendant's possession — no expectation of privacy There was no error in a first-degree murder prosecution from the introduction of evidence seized from the victim's automobile where defendant was in possession of the automobile when it was seized. A person's right to be free from unreasonable searches and seizures is a personal right; the record tends to show that defendant did not have any authority to use the car and defendant's self-serving comments wherein he claimed permission to use the car are not sufficient to meet his burden of showing a legitimate possessory interest in the automobile. Furthermore, it cannot fairly be said that defendant conferred upon himself any reasonable expectation of privacy by driving the car. Am Jur 2d, Searches and Seizures 32.

1. Utilities Commission 44 (NCI3d) — final decision by Commission — absence of appeal — reconsideration of issue not required Where a water service company asked the Utilities Commission to determine how the gain on a sale of certain service<page_number>Page 494</page_number> areas would be distributed so that it could calculate its bargaining position, the Commission determined that the gain would be split between the company's stockholders and ratepayers, the company negotiated the sale of the service areas based on the Commission's decision, the company did not appeal this decision within thirty days after it became final, and the company later asked the Commission to reconsider this issue in a general rate case, the Commission was not required to rehear the issue of the division of the gain on sale in the general rate case. The water service company should have followed the correct channels of appeal at the time of the initial decision and appealed the final decision of the full Commission to the Supreme Court within thirty days. N.C.G.S. <cross_reference>62-80</cross_reference>, <cross_reference>62-90</cross_reference>(a). Am Jur 2d, Public Utilities 276 et seq. 2. Utilities Commission 51 (NCI3d) — water rates — panel decision — failure to exhaust administrative remedies A water service company failed to exhaust its administrative remedies on the issue of the disallowance of certain expenses and is barred from pursuing judicial review of this issue where the recommended decision of a panel disallowing these expenses was not excepted to or brought before the full Commission and thus became the final order of the full Commission by operation of statute. While G.S. Ch. 62 does not explicitly set out a procedure for administrative exhaustion of issues brought before the Utilities Commission, consideration of the statute in general and public policy dictate that exhaustion be required. N.C.G.S. <cross_reference>62-78</cross_reference>(c). Am Jur 2d, Public Utilities 276 et seq. 3. Utilities Commission 31 (NCI3d) — rate penalty for inadequate service — insufficient evidence — inadequate order The Utilities Commission's decision imposing a 1% rate of return penalty on a water service company for inadequate service was not supported by competent, material, and substantial evidence where the company presented evidence that its service met all state and federal requirements; quality and service complaints were made by only 1% of its customers; there were no complaints from fifty of the eighty-nine subdivisions served by the company; most of the complaints came from seven subdivisions; and the Commission penalized the<page_number>Page 495</page_number> company based on its overall service to its customers. In addition, the Commission's order was inadequate for the imposition of a rate penalty for inadequate service where the order indicates neither in what manner the company violated the Commission's standards nor what those standards are, and the order does not state what the company is to do to make the service adequate. N.C.G.S. <cross_reference>62-79</cross_reference>(a). Am Jur 2d, Public Utilities 269, 274. 4. Utilities Commission 35 (NCI3d) — water rates — elevated storage tanks — excess capacity Competent, material, and substantial evidence supported the Utilities Commission's decision that a calculation of 200 gallons per day per connection be used to determine how much excess capacity existed in a water service company's elevated storage tanks for its nonmunicipal water systems. Am Jur 2d, Public Utilities 138 et seq. 5. Utilities Commission 35 (NCI3d) — water rates — rate capacity allowance — insufficient evidence — absence of adjustment for future revenues A Utilities Commission decision permitting a 35% capacity allowance for future growth in a water service company's rate base was not supported by competent, material, and substantial evidence where there was evidence that a 35% figure had been approved by the Commission in the past for a typical residential subdivision but there was no specific evidence that subdivisions subject to the capacity allowance will expand by a rate of 35% in the near future, and the Commission did not follow the approved practice of setting out a matching adjustment for revenues expected to be obtained due to the potential increase in customers in the near future. Am Jur 2d, Public Utilities 138 et seq. 6. Utilities Commission 52 (NCI3d) — water and sewer rates — method of calculating excess capacity — effect of failure to appeal prior decisions Where the Public Staff failed to appeal in previous cases the Utilities Commission's decision to include original costs and capitalized rehabilitation costs of certain sewage treatment<page_number>Page 496</page_number> plants in the rate base rather than in its consideration of the total treatment plant cost in determining excess capacity, the Public Staff is bound by those decisions and may not obtain review of this method of calculation in the present case. Am Jur 2d, Public Utilities 138 et seq. 7. Utilities Commission 35 (NCI3d) — water and sewer rates — abandoned property — unamortized portion improperly included in rate base The Utilities Commission erred in determining that the unamortized portion of an extraordinary property retirement should be included in the rate base of a water and sewer company since there is no statutory authority for including in the rate base costs from a completed plant that is no longer used and useful. Am Jur 2d, Public Utilities 138 et seq.

1. Criminal Law 454 (NCI4th) — murder — closing argument — severity of sentence — argument not allowed — error The trial court erred in a murder prosecution by not allowing defendant's attorney to argue to the jury the severity of the sentence where the argument did not question the appropriateness of the punishment or suggest that the defendant should be acquitted because of the severity of the punishment, but did encourage the jury to give careful consideration to the case. Although the State argued that any error was harmless because of the overwhelming evidence of guilt, the Supreme Court could not hold that this error, combined with not allowing defendant's attorney to argue the defendant was not guilty, was harmless. Am Jur 2d, Trial 229. 2. Criminal Law 444 (NCI4th) — murder — closing argument by defendant — objections erroneously sustained The trial court erred in a murder prosecution by sustaining the State's objections to portions of defense counsel's argument in which the State contended that the attorney was personally vouching for the credibility of a witness and misstating the law. The State did not say why the defense attorney was vouching for the witness or how he was misstating the law and the Supreme Court could not see how he did so. Although the State argued that any error was harmless because of the overwhelming evidence of guilt, the Supreme Court could not hold that this error, combined with not allowing the defense attorney to argue the severity of the sentence, was harmless. Am Jur 2d, Trial 225 et seq. <block_quote> Propriety and prejudicial effect of comments by counsel vouching for credibility of witnesses — state cases. 45 ALR4th 602.</block_quote><page_number>Page 540</page_number>

1. Jury 235 (NCI4th) — capital trial — death qualification of jury The trial court properly denied defendant's motion to prohibit the State from death qualifying the jury during the guilt phase of a capital trial. Am Jur 2d, Jury 290. 2. Jury 96 (NCI4th) — capital trial — jury voir dire — order prohibiting questions previously asked by court — statutory violation — harmless error The trial court's pretrial order in a capital trial forbidding defense counsel, under penalty of contempt, to repeat on voir dire any questions previously asked by the court unless the answer given made further questioning relevant violated N.C.G.S. <cross_reference>15A-1214</cross_reference>(c). However, this error did not constitute the denial of a constitutional right and did not result in prejudice entitling defendant to a new trial where the scope of the questions propounded by the court was so general as to allow defense counsel ample opportunity for further inquiry to determine whether any prospective juror harbored preconceived ideas<page_number>Page 619</page_number> or beliefs; the record reveals numerous occasions when defense counsel was allowed to probe further into each potential juror's understanding of the burden of proof and the juror's ability to follow the law as explained by the court in determining guilt or innocence and, if necessary, the penalty to be imposed; and the record contains no questions not related to sentencing which defendant was prohibited from asking a person ultimately impaneled as a juror. Am Jur 2d, Jury 195 et seq. 3. Jury 139 (NCI4th) — jury voir dire — fairness of burden of proof — question properly excluded The trial court did not err in sustaining the State's objection to defense counsel's question as to whether potential jurors believed it was fair for the law to place a higher burden of proof on the State than on defendant since the role of a juror is not to weigh and make policy decisions concerning the fairness of the law, and an answer to the question thus would not reveal pertinent information bearing upon a potential juror's qualifications to serve as an impartial juror. Even if the trial court erred in sustaining the objection, the error was not prejudicial where each prospective juror had just answered that he or she understood that defendant did not have the State's burden of proof and would not hold defendant to the State's burden of proof, and the court immediately thereafter inquired about the jurors' ability to follow carefully the court's instructions on the parties' burden of proof. Am Jur 2d, Jury 197. 4. Jury 132 (NCI4th) — jury voir dire — exclusion of question about election not to testify — use of peremptory challenge Defendant was not prejudiced by any error in the trial court's refusal to permit defense counsel to ask a potential juror whether she would "hold it against" defendant if defendant elected not to testify where the juror was peremptorily challenged by defendant. Am Jur 2d, Jury 197. 5. Jury 243 (NCI4th) — capital trial — peremptory challenges — pretrial increase not allowed The trial court had no authority to allow defendant additional peremptory challenges at the pretrial stage of a capital<page_number>Page 620</page_number> trial. Even if the trial court had such authority, defendant was not prejudiced by the denial of his pretrial motion for additional challenges where defendant had three unused peremptory challenges when the jury, including the alternates, was impaneled. N.C.G.S. <cross_reference>15A-1217</cross_reference>. Am Jur 2d, Jury 242 et seq. 6. Jury 190 (NCI4th) — denial of challenge for cause — exhaustion of peremptory challenges A defendant cannot show prejudice by the denial of a challenge for cause until he has exhausted his peremptory challenges, has made a renewed challenge for cause which was denied, and has requested and been denied an additional peremptory challenge. N.C.G.S. <cross_reference>15A-1214</cross_reference>(h). Am Jur 2d, Jury 218. 7. Homicide 552 (NCI4th) — first-degree murder — second-degree instruction not required There was no evidence of a lack of premeditation and deliberation in a prosecution for two first-degree murders which would require the trial court to instruct the jury on second-degree murder where the evidence tended to show that defendant drove from his home in Ahoskie to a store outside Gatesville with the intention of killing the store owner for money; he entered the store on at least one earlier occasion hoping to find the store empty of customers; he devised a scheme posing as a DEA agent to clear the parking lot; he then entered the store carrying a 12-gauge sawed-off shotgun; as he approached the owner, he told her he was going to kill her; he forced her onto a lounge chair behind the counter and shot her from a very short distance; and when startled by the appearance of the owner's daughter entering the main room of the store, he held her at gunpoint, raped her, and then shot and killed her also. Am Jur 2d, Homicide 526. 8. Criminal Law 757 (NCI4th) — instruction on reasonable doubt — due process The trial court's instruction defining reasonable doubt as "an honest substantial misgiving based upon the jury's reason and common sense and reasonably arising out of some or all<page_number>Page 621</page_number> of the evidence that has been presented or the lack or insufficiency of that evidence" did not reduce the State's burden of proof in violation of defendant's constitutional right to due process. Am Jur 2d, Trial 829 et seq. 9. Homicide 489 (NCI4th) — lack of provocation — consideration on question of premeditation and deliberation — propriety of instruction The trial court's instruction that lack of provocation on the part of the victim is one of the circumstances which may be considered by the jury on the question of whether defendant acted with premeditation and deliberation did not impose upon defendant the burden to produce evidence of provocation in order to avoid conviction and thus did not relieve the State of its burden of proving every element of the crime charged beyond a reasonable doubt. Additionally, the instruction was justified because the evidence failed to show legal provocation sufficient to negate premeditation and deliberation where the only possible evidence of provocation was defendant's statement to an officer that he had been drinking when he entered a store; a white male taunted him and the store owner called him a troublemaker; defendant challenged the white male to fight outside, but the white male left the premises; and defendant obtained a shotgun from his car, reentered the store, shot and killed the owner, and then raped and killed her daughter. Am Jur 2d, Homicide 500. 10. Criminal Law 751 (NCI4th) — instructions — ascertainment of truth as aim of trial — reasonable doubt standard The trial court's instruction that the highest aim of every legal contest is the ascertainment of the truth could not have misled a reasonable juror concerning the reasonable doubt standard and was not improper. Am Jur 2d, Trial 827 et seq. 11. Jury 148 (NCI4th) — capital trial — automatic vote for death penalty — voir dire questions not allowed — due process violation — prejudicial error Defendant's due process right to a capital sentencing proceeding by a qualified, impartial jury was violated by the<page_number>Page 622</page_number> trial court's refusal to permit defense counsel to ask some of the prospective jurors whether their support for the death penalty was such that they would find it difficult to consider voting for life imprisonment for a person convicted of first-degree murder and whether their belief in the death penalty would make it difficult for them to follow the law and consider life imprisonment for first-degree murder. Although defense counsel did not use the words "automatically" or "always," the gist of the questions was an attempt by counsel to determine whether each prospective juror was willing to consider life imprisonment in the appropriate circumstances or would automatically vote for death upon conviction. General "follow the law" questions by the trial court were insufficient to determine any predilection of a juror toward imposing the death penalty, and the trial court's failure to allow defendant to "life qualify" all of the jurors who sat on the jury in defendant's trial constituted prejudicial error entitling defendant to a new sentencing hearing. Am Jur 2d, Jury 197. 12. Jury 148 (NCI4th) — capital trial — voir dire — appropriateness of death penalty — improper question The trial court did not err by refusing to permit defense counsel to ask prospective jurors in a capital trial whether they felt that the death penalty is the appropriate penalty for someone convicted of first-degree murder since this question was overly broad and called for a legislative, policy decision. Am Jur 2d, Jury 197.

Criminal Law 338 (NCI4th) — murder — defendants joined for trial — motion to sever — erroneously denied — antagonistic defenses The trial court erred in a prosecution for first-degree murder and discharging a firearm into occupied property by denying defendants' motion to sever where various joinder-driven evidentiary rulings, and the exchanges that occurred between defendants related to these rulings, demonstrate that the joinder of these defendants for trial yielded an evidentiary contest more between the defendants themselves than between the State and the defendants. Given the conflict in defendants' respective positions at trial and considering the other evidence in the case, including the paucity of evidence on acting in concert, a severance was necessary to promote a fair determination of defendants' guilt or innocence. N.C.G.S. <cross_reference>15A-927</cross_reference>(c)(2). Am Jur 2d, Trial 21. <block_quote> Antogonistic defenses as ground for separate trials of codefendants in criminal case. 82 ALR3d 245.</block_quote>