Volume 337 — North Carolina Reports

1. Judgments § 43 (NCI4th) — dismissal of complaint — jurisdiction to sign order out of session The trial court had jurisdiction under N.C.G.S. § <cross_reference>7A-47.1</cross_reference> to enter an order dismissing plaintiffs' complaint out of session without the consent of the parties since the order did not require a jury and was signed and entered in the proper county and proper judicial district. Furthermore, the out-of-session order was also authorized by N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 6(c), which provides that the expiration of a court session has no effect on the court's power "to do any act or take any proceeding," since this rule clearly allows a superior court judge to sign a written order out of session without the consent of the parties so long as the hearing to which the order relates was held in the trial judge's assigned term and assigned district. Am Jur 2d, Judgments §§ 58 et seq. 2. Limitations, Repose, and Laches § 86 (NCI4th); Zoning § 24 (NCI4th) — outdoor advertising sign ordinance — attack on constitutionality — statute of limitations Plaintiff billboard companies' <cross_reference>42 U.S.C. § 1983</cross_reference> claim contesting the constitutionality of a city's October 1983 outdoor advertising sign ordinance accrued on the effective date of the ordinance pursuant to N.C.G.S. § <cross_reference>160A-364.1</cross_reference>. Therefore, plaintiffs' action filed five and one-half years after the effective date of the ordinance was barred by both the nine-month statute of limitations for an action contesting the validity of any zoning ordinance or amendment thereto contained in N.C.G.S. §§ <cross_reference>1-54.1</cross_reference> and <cross_reference>160A-314.1</cross_reference>, which has been applied by the N.C. Court of Appeals to § 1983 sign cases, and by the three-year personal injury statute of limitations set forth in N.C.G.S. § <cross_reference>1-52</cross_reference>(5), which has been applied by the federal courts of the Fourth Circuit to such cases. Am Jur 2d, Zoning and Planning §§ 322 et seq., 1048-1050.<page_number>Page 151</page_number>

<bold>1. Criminal Law § 762 (NCI4th) — noncapital first-degree murder</bold> <bold>— instructions — reasonable doubt</bold> There was no error in a noncapital first-degree murder trial under <italic>Cage v. Louisiana</italic>, <cross_reference>498 U.S. 39</cross_reference>, from the use of the phrase "honest substantial misgiving" in defining reasonable doubt where, read in context and considering the instruction as a whole, the jury would not have interpreted the instruction to have overstated the level of doubt required for acquittal. Moreover, there is no reasonable likelihood that the jury would have understood "moral certainty" to be disassociated from the evidence in the case. The phrase would not have allowed the jury to return a verdict of guilty based on a subjective feeling rather than upon an evaluation of the evidence. <bold>Am Jur 2d, Trial § 1385</bold>. <bold>2. Evidence and Witnesses § 339 (NCI4th) — noncapital first-degree</bold> <bold>murder — other acts of violence and threats —</bold> <bold>admissible</bold> The trial court did not err in a noncapital first-degree murder prosecution by allowing a prosecution witness to testify concerning other alleged acts of violence and threats of violence by defendant where the testimony was corroborative of other testimony, was corroborated by other testimony, and tended to show malice, an essential element of first-degree murder. The evidence was thus relevant to an issue other than defendant's character. N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 404(b). <bold>Am Jur 2d, Evidence §§ 437 et seq.; Homicide § 310</bold>.<page_number>Page 299</page_number> <bold>3. Evidence and Witnesses § 775 (NCI4th) — noncapital</bold> <bold>first-degree murder — alibi testimony excluded as hearsay — no</bold> <bold>prejudicial error</bold> There was no prejudicial error in a noncapital first-degree murder prosecution where the court excluded testimony concerning defendant's plans on the night of the murder, which defendant contends were relevant to show that defendant did not go to the victim's trailer but went to look for men from whom he had arranged to buy stolen goods. Evidence of a declarant's intent to engage in a future act has been held to be admissible, but there was no prejudice from the exclusion here because the evidence offered an additional explanation for defendant's presence in the area of the scene of the crime rather than an alibi, defendant was able to get the evidence before the jury, and defendant put on extensive evidence to support a different alibi. <bold>Am Jur 2d, Appeal and Error §§ 797-804</bold>. <bold>4. Evidence and Witnesses § 2891 (NCI4th) — noncapital</bold> <bold>first-degree murder — witness to whom defendant confessed —</bold> <bold>cross-examination — sexual relations with defendant</bold> The trial court did not err in a first-degree murder prosecution by excluding testimony on cross-examination that a witness to whom defendant confessed had sexual relations with defendant after the confession. Although defendant contended that this evidence was admissible to impeach the witness, who claimed that she was shocked and scared by the confession, and to corroborate other witnesses who testified that the witness and defendant were affectionate on the night of the shooting, evidence of the witness's response to the confession was admitted, evidence that she had sex with defendant did not tend to prove any fact in issue, any impeachment value from the apparent strangeness of her behavior was tenuous because the witness had testified that she was drinking and using cocaine on the night of the killing, and defendant was not deprived of the opportunity to corroborate other testimony because evidence that the witness and defendant were affectionate was admitted. <bold>Am Jur 2d, Witnesses §§ 484 et seq</bold>.<page_number>Page 300</page_number> <italic>5. Criminal Law § 442 (NCI4th) — noncapital first-degree murder</italic> <italic>— prosecutor's argument — vengeance — no prejudicial</italic> <italic>error</italic> There was no prejudicial error in the prosecutor's argument in a noncapital first-degree murder prosecution where defendant contended that the prosecutor argued that it was the jury's duty to avenge the victim's death where the prosecutor did not explicitly argue that the jury had a duty to avenge the victim's death and, while his choice of language as he discussed the historical context is not to be condoned, when read in context, the argument did not result in the jury being mislead regarding its duty or the proper basis for its verdict. <bold>Am Jur 2d, Trial §§ 567 et seq</bold>.

<bold>Securities and Investment Regulations § 119 (NCI4th) — stock</bold> <bold>index futures contracts — under-margined accounts —</bold> <bold>liquidation without notice to customer</bold> The pervasive federal regulatory scheme for futures trading, including Chicago Mercantile Exchange Rule 827, is designed to afford maximum protection to the commodities merchants and the commodities exchanges themselves and therefore permits the liquidation of a customer's under-margined account without prior demand or notice. Therefore, defendant merchant acted properly in liquidating plaintiffs' under-margined stock index futures contracts during the stock-market crash of October 1987 without notice to plaintiffs where plaintiffs had failed to meet a previous margin call and another margin call was imminent. Any terms of the customer contract contrary to the federal regulatory scheme would be unenforceable. <bold>Am Jur 2d, Securities Regulation — State §§ 95 et seq</bold>.

<bold>1. Divorce and Separation § 350 (NCI4th) — child custody —</bold> <bold>father's age — not fundamental basis of court's decision</bold> The trial judge's brief references to the ages of the parties in an oral statement and in her written order did not indicate that plaintiff father's age was a "fundamental" basis of her decision awarding custody of a child to defendant mother in light of all the other reasons given for that decision. <bold>Am Jur 2d, Divorce and Separation §§ 974 et seq</bold>. <bold>2. Constitutional Law § 89 (NCI4th) — equal protection —</bold> <bold>invidious discrimination — necessity for classification</bold> The equal protection clause of the Fourteenth Amendment deals with invidiously discriminatory classifications, and there is no equal protection claim without some type of "classification" of an individual. <bold>Am Jur 2d, Constitutional Law §§ 735 et seq</bold>. <bold>3. Constitutional Law § 92 (NCI4th); Divorce and Separation §</bold> <bold>350 (NCI4th) — child custody — court's comments about</bold> <bold>father's age — no equal protection violation</bold> The statute the trial court follows in determining child custody, N.C.G.S. § <cross_reference>50-13.2</cross_reference>(a), does not classify an older parent either on its face or in its application, and the trial court's passing comments about plaintiff father's age when determining the child's best interest in accordance with the statute did not constitute an unlawful classification in violation of plaintiff's equal protection rights. <bold>Am Jur 2d, Constitutional Law §§ 784-801</bold>. <bold>4. Constitutional Law § 92 (NCI4th); Divorce and Separation §</bold> <bold>350 (NCI4th) — child custody — consideration of parent's</bold> <bold>age — no equal protection violation</bold> Assuming <italic>arguendo</italic> that a parent's right to the custody of a child was fundamental, the trial court's consideration of a parent's age in determining custody between two natural parents did not violate equal protection since the consideration of all aspects<page_number>Page 345</page_number> of both parents' lives, including the effect of their ages upon the potential for continuity and stability in the life of the child, was necessary to promote the governmental interest of granting custody based on the best interest of the child. <bold>Am Jur 2d, Constitutional Law §§ 784-801</bold>. <bold>5. Divorce and Separation § 337 (NCI4th) — child custody —</bold> <bold>court's comment about father's age — no presumption in</bold> <bold>favor of mother</bold> The trial judge's comments about the father's age in her oral statement explaining her decision to grant custody of a child to defendant mother and her mention of the ages of both parents in her written order did not create a presumption in favor of the younger mother in violation of N.C.G.S. § <cross_reference>50-13.2</cross_reference>(a) where it is clear that the age factor was not given more weight than other factors in the trial judge's determination of the best interest of the child. <bold>Am Jur 2d, Divorce and Separation §§ 974 et seq</bold>. <bold>6. Appeal and Error § 44 (NCI4th) — issue not addressed by</bold> <bold>parties — consideration by Court of Appeals</bold> Although an issue concerning the trial judge's comments on her duty to consider the testimony of a five-year-old child as related by adult witnesses was not addressed by either party on appeal to the Court of Appeals, the Court of Appeals could consider the effect of the comments as a matter of appellate grace pursuant to N.C.G.S. § <cross_reference>7A-32</cross_reference>(c) and Appellate Rule 2. <bold>Am Jur 2d, Appeal and Error § 5</bold>. <bold>7. Divorce and Separation § 352 (NCI4th) — child custody —</bold> <bold>hearsay statements — court's hesitancy to admit — limited</bold> <bold>weight</bold> The trial judge in a child custody case did not err by indicating that she found it "dangerous" to allow into evidence statements of parents relating what a child has said and by giving such statements limited weight where the judge recognized that such hearsay statements may be admitted under Rule 803, admitted such testimony in light of this rule, and acknowledged the admission of such evidence in her written findings of fact. The weight and credibility of such testimony was within the discretion of the trial court.<page_number>Page 346</page_number> <bold>Am Jur 2d, Divorce and Separation § 975</bold>. <bold>Child's wishes as factor in awarding custody. 4 ALR3d 1396</bold>.

<bold>1. Burglary and Unlawful Breakings § 164 (NCI4th) — first-degree</bold> <bold>burglary — intent to commit murder — conflicting</bold> <bold>evidence — necessity for instruction on misdemeanor</bold> <bold>breaking or entering</bold> In a prosecution for first-degree burglary wherein the State presented evidence that defendant intended to murder the victim, his mother-in-law, at the time he broke and entered her home while looking for his wife and son, defendant presented sufficient evidence that the killing of the victim was accidental and that he did not possess the requisite intent to murder at the time he entered her home so that the trial court erred by refusing to instruct the jury on misdemeanor breaking or entering where<page_number>Page 372</page_number> defendant's evidence tended to show that he loved the victim, who was like a second mother to him; he did not intend to injure anyone when he went to the victim's residence; his rifle occasionally discharged accidentally; he had activated the safety; the gun accidentally discharged when his father-in-law grabbed for the barrel; and he told a witness moments after the shooting that his father-in-law jerked the gun and it went off. This error was not cured by the guilty verdict of first-degree burglary since it cannot be known whether the jury would have convicted defendant of misdemeanor breaking or entering had it been properly instructed. <bold>Am Jur 2d, Trial §§ 1427-1435</bold>. <block_quote> <bold>Lesser-related state offense instructions: modern status.</bold> <bold>50 ALR4th 1081</bold>.</block_quote> 2. <bold>Assault and Battery § 116 (NCI4th) — assault with deadly</bold> <bold>weapon with intent to kill — instruction on misdemeanor</bold> <bold>assault not required</bold> In a prosecution of defendant for assault of his wife with a deadly weapon with intent to kill, defendant's testimony that he was unaware that his wife was in the car at the time he shot into the vehicle did not require the trial court to instruct on the lesser included offense of misdemeanor assault with a deadly weapon where defendant's intent to kill was shown by uncontradicted evidence that defendant and his wife had argued; defendant was angry, was breaking dishes, and said that he would get his gun; defendant heard his wife tell his son to get into the car; the vehicle was moving when defendant fired at it with his rifle, hitting the front windshield slightly to the right of center on the passenger side; and defendant, with another rifle in his hand, then searched for his wife. Assuming that defendant's testimony was sufficient to permit submission of the lesser offense, defendant was not prejudiced by the trial court's failure to submit the lesser offense where defendant's testimony was rejected by the jury when it found defendant guilty of discharging a firearm into an occupied vehicle. <bold>Am Jur 2d, Trial §§ 1427 et seq</bold>. 3. <bold>Homicide § 727 (NCI4th) — felony murder — two underlying</bold> <bold>felonies — arrest of judgment on one felony</bold> Where the jury found defendant guilty of felony murder based on the underlying felonies of first-degree burglary and discharging<page_number>Page 373</page_number> a firearm into occupied property, and there was error in submission of first-degree burglary requiring a new trial on that charge, the judgment imposed on the discharging a firearm into occupied property conviction must be arrested. To the extent that dicta in <italic>State v. Pakulski</italic>, <cross_reference>326 N.C. 434</cross_reference>, <cross_reference>437</cross_reference> suggests that convictions for more than one underlying felony merge with the murder conviction, thereby mandating that judgment on the multiple underlying felonies be arrested, that dicta is expressly disavowed. <bold>Am Jur 2d, Homicide §§ 549 et seq</bold>. 4. <bold>Homicide § 658 (NCI4th) — voluntary intoxication —</bold> <bold>instruction not required by evidence</bold> The trial court did not err by refusing to instruct the jury on voluntary intoxication in a felony murder prosecution based on the underlying felony of first-degree burglary with the intent to commit murder where the evidence tended to show that defendant consumed alcoholic beverages during the day and evening of the crimes and that defendant was somewhat intoxicated, but nothing in the record indicated that defendant's mind and reason were so completely overwhelmed by alcohol that he was rendered incapable of forming the requisite intent to kill, and defendant testified that he knew what he was doing on the day of the crimes. <bold>Am Jur 2d, Homicide § 517</bold>. 5. <bold>Evidence and Witnesses § 1652 (NCI4th) — photographs —</bold> <bold>defendant's destruction of property — hostility toward wife</bold> <bold>— admission for illustrative purposes</bold> Five photographs depicting defendant's extensive destruction of the contents of the home he shared with his wife were properly admitted to illustrate the testimony of three witnesses that on the night of a murder and other crimes defendant acted overtly hostile and with inexplicable violence toward his wife, notwithstanding defendant admitted destroying most of the property shown in the photographs, where the photographs were not used excessively or repetitively during the trial, and the probative value of the photographs was not outweighed by the potential prejudice to defendant. <bold>Am Jur 2d, Evidence §§ 960 et seq</bold>.<page_number>Page 374</page_number>

<bold>1. Parent and Child § 24 (NCI4th); Constitutional Law § 119</bold> <bold>(NCI4th) — adoption — consent revoked — inquiry into</bold> <bold>religious beliefs — rights of natural parents</bold> The trial court correctly ordered an adopted child returned to its biological parents where the trial court found that the biological mother had consistently and continuously attempted to set aside her consent; the male defendant is the biological father and had attempted to legitimate his son on several occasions; a Michigan home study reflects that defendants are fit and appropriate persons to have custody of their son; the son was not eligible for adoption and the rights of his parents have not been terminated;<page_number>Page 398</page_number> and there was no finding that defendants had neglected their child's welfare in any way. Absent a finding that parents are unfit or have neglected the welfare of their children, the constitutionally protected paramount right of parents to custody, care, and control of their children must prevail and inquiry into plaintiffs' religious beliefs, if error, was harmless. <bold>Am Jur 2d, Parent and Child §§ 26, 28</bold>. <block_quote> <bold>Religion as factor in child custody and visitation cases.</bold> <bold>22 ALR4th 971</bold>.</block_quote> 2. <bold>Parent and Child § 28 (NCI4th) — adoption revoked — right</bold> <bold>to visitation</bold> The trial did not err when revoking an adoption and awarding custody of the child to the biological parents by including a conclusion that there should be no visitation with plaintiffs (the adoptive parents) except as may be consented to and approved by defendants. N.C.G.S. § <cross_reference>50-13.1</cross_reference> was not intended to confer upon strangers the right to bring custody or visitation actions against parents of children unrelated to such strangers; such a right would conflict with the constitutionally-protected paramount right of parents to custody, care, and control of their children. Language in <italic>Ray v. Ray</italic>, <cross_reference>103 N.C. App. 790</cross_reference>, indicating that the statute changed the paramount right of parents was expressly disavowed. <bold>Am Jur 2d, Parent and Child § 36</bold>. <block_quote> <bold>Visitation rights of persons other than natural</bold> <bold>parents or grandparents. 1 ALR4th 1270</bold>.</block_quote>

1. Jury § 226 (NCI4th) — first-degree murder — jury selection — death qualification — opportunity to rehabilitate The trial court not err in a first-degree murder prosecution by allowing the State's challenges for cause of prospective jurors on the basis of their opposition to capital punishment without first giving the defendant an opportunity to attempt to rehabilitate where each of the excused jurors unequivocally stated that he or she was opposed to the death penalty and could not vote for its imposition and the defendant has shown nothing tending to indicate that further questioning was likely to have produced any different answers. Am Jur 2d, Jury § 290. <block_quote> Comment Note. — Beliefs regarding capital punishment as disqualifying juror in capital case — post-<italic>Witherspoon</italic> cases. 39 ALR3d 550.</block_quote> 2. Criminal Law § 874 (NCI4th) — first-degree murder — reinstruction on elements — "sixth" element omitted — no plain error There was no plain error in a first-degree murder prosecution where the trial court's initial instruction on the elements of first-degree murder included the sixth element that defendant did not act in self-defense or was the aggressor, the jury returned and asked the court to restate the six requirements, the court reinstructed the jury according to its original instruction but omitted the sixth instruction, the jury indicated that its request had been answered, the jury continued its deliberations and returned with a guilty verdict, and the court subsequently made findings that it had only instructed the jury on the first five requirements and that counsel had indicated in court that there was nothing further and had later informed the court in chambers that he had not wanted the court to instruct on the sixth requirement. Assuming that the evidence raised an issue of self-defense and required an initial instruction on that defense, the failure of the trial court to reinstruct on this matter in response to the jury's inquiry was not plain error because the jurors indicated that the trial court's<page_number>Page 470</page_number> response answered their question and was a sufficient response, despite the fact that their question clearly indicated that they were aware that the initial instruction had included a sixth "requirement" for conviction in the present case, leading to the conclusion that the jury was concerned with some matter involving one of the elements of the crime of first-degree murder and not with any issue of self-defense. Moreover, defendant's own evidence indicates that the trial court's failure to reinstruct the jury concerning absence of self-defense had no effect on the jury. Am Jur 2d, Trial §§ 1108 et seq. 3. Homicide § 230 (NCI4th) — first-degree murder — sufficiency of evidence There was sufficient evidence of first-degree murder where the evidence presented at trial would support inferences and findings to the effect that the defendant plotted to kill his father-in-law; lured the victim to a farm on a pretext; shot him twice causing his death; and thereafter made every effort possible to conceal his crime by giving various contrived versions of what had occurred and by concealing or destroying physical evidence that the crime had been committed. Am Jur 2d, Homicide §§ 425 et seq. 4. Criminal Law § 1337 (NCI4th) — first-degree murder — sentencing — aggravating circumstance — prior conviction for involuntary manslaughter The trial court did not err in a capital sentencing procedure by allowing the jury to consider defendant's previous conviction for involuntary manslaughter as the basis for the sole aggravating factor of a previous conviction of a felony involving the use or threat of violence to a person. Although defendant argued that involuntary manslaughter is by definition an unintentional killing and that the General Assembly intended to make only intentional crimes of violence aggravating circumstances, nothing in the wording of the statute hints at a legislative intent that the prior felony conviction must have involved such an intentional use or a threat of violence to another person. The prior felony conviction can be either for a felony which has as an element the use or threat of violence to the person, or a felony which does not have the use or threat of violence as an element but which is committed with the use or threat of violence. N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e)(3). Am Jur 2d, Criminal Law §§ 598, 599.<page_number>Page 471</page_number> <block_quote> Sufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that defendant was previously convicted of or committed other violent offense, had history of violent conduct, posed continuing threat to society, and the like — post-<italic>Gregg</italic> cases. 65 ALR4th 838.</block_quote> 5. Criminal Law § 1337 (NCI4th) — first-degree murder — sentencing — aggravating circumstances — prior felony involving violence — requested instruction on violence The trial court did not err at a capital sentencing proceeding by declining to give defendant's requested instruction on the aggravating circumstance of a prior felony involving violence that "...violence is the use of extreme force with the intent to inflict harm or destruction." Am Jur 2d, Criminal Law §§ 598, 599. <block_quote> Sufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that defendant was previously convicted of or committed other violent offense, had history of violent conduct, posed continuing threat to society, and the like — post-<italic>Gregg</italic> cases. 65 ALR4th 838.</block_quote> 6. Criminal Law § 1323 (NCI4th) — first-degree murder — sentencing — definition of aggravating circumstances The definition of aggravating circumstance created by N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e) is not vague and overbroad. Am Jur 2d, Trial §§ 1441 et seq. 7. Criminal Law § 1348 (NCI4th) — first-degree murder — sentencing — definition of mitigating circumstances The trial court did not err in a capital sentencing proceeding by failing to give defendant's requested instruction defining mitigating circumstances and directing the jurors that they could properly base their sentencing recommendation upon any sympathy they might have for defendant. The instruction given by the court, in context, clearly informed the jurors that they could consider any circumstance, including sympathy for the defendant, which they found to arise from the evidence and deemed to have mitigating value. Am Jur 2d, Criminal Law §§ 598, 599; Trial §§ 1441 et seq.<page_number>Page 472</page_number> 8. Constitutional Law § 370 (NCI4th); Criminal Law § 1333 (NCI4th) — first-degree murder — sentencing — issues and recommendation sheet — weighing aggravating and mitigating circumstances The trial court's use of the issues and recommendation sheet in a capital sentencing proceeding did not violate the cruel and unusual punishment clause in the Eighth Amendment and deny defendant due process where defendant argued that the language is defective because it allows a jury to recommend death if it finds that the mitigating circumstances are of equal weight and value to the aggravating circumstances found, but that argument has been previously rejected. Am Jur 2d, Criminal Law §§ 598, 599, 628. <block_quote> Supreme Court's views on constitutionality of death penalty and procedures under which it is imposed or carried out. <cross_reference>90 L.Ed.2d 1001</cross_reference>.</block_quote> 9. Constitutional Law § 370 (NCI4th); Criminal Law § 1351 (NCI4th) — first-degree murder — sentencing — instructions — mitigating circumstances — burden of proof A defendant in a capital sentencing proceeding was not deprived of his right to be free from cruel and unusual punishment where the court instructed the jury that the defendant had the burden of proving mitigating circumstances by a preponderance of the evidence. Am Jur 2d, Criminal Law §§ 598, 599, 628. <block_quote> Supreme Court's views on constitutionality of death penalty and procedures under which it is imposed or carried out. <cross_reference>90 L.Ed.2d 1001</cross_reference>.</block_quote> 10. Criminal Law § 1349 (NCI4th) — first-degree murder — sentencing — instructions — consideration of mitigating circumstances The trial court did not err in a capital sentencing proceeding in the issues contained on the Issues and Recommendation as to Punishment Form where the jury instructions were strictly in accord with the Pattern Jury Instructions as amended to conform to the dictates of <italic>McKoy v. North Carolina</italic>, <cross_reference>494 U.S. 433</cross_reference>; the instructions given expressly state that any single juror may find that a nonstatutory mitigating circumstance exists and may deem<page_number>Page 473</page_number> it to have mitigating value; the Issues and Recommendation as to Punishment Form used by the trial court, together with the trial court's instructions in their entirety during the capital sentencing proceeding, emphasized that each juror was to consider and give weight to all evidence that juror found to be mitigating; and the Supreme Court was convinced that each juror was permitted to and did consider all of the mitigating evidence he or she found to exist. Am Jur 2d, Criminal Law §§ 598, 599; Trial §§ 1441 et seq. 11. Constitutional Law § 370 (NCI4th) — death penalty — jury discretion — not unconstitutional The North Carolina death penalty statute is not facially unconstitutional because jury discretion is not guided appropriately by objective standards. N.C.G.S. § <cross_reference>15A-2000</cross_reference>. Am Jur 2d, Criminal Law § 628. 12. Criminal Law § 1373 (NCI4th) — first-degree murder — death sentence — not disproportionate A sentence of death for first-degree murder was upheld where the record fully supports the aggravating circumstances found by the jury; there is no indication that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary consideration; and the sentence of death was not disproportionate. The fact that one, two, or several juries have returned recommendations of life imprisonment in cases similar to the one under review does not automatically establish that juries have consistently returned life sentences in factually similar cases. N.C.G.S. § <cross_reference>15A-2000</cross_reference>(d)(2). Am Jur 2d, Criminal Law § 628. <block_quote> Supreme Court's views on constitutionality of death penalty and procedures under which it is imposed or carried out. <cross_reference>90 L.Ed.2d 1001</cross_reference>.</block_quote> <block_quote> Validity of death penalty, under Federal Constitution, as affected by consideration of aggravating or mitigating circumstances — Supreme Court cases. <cross_reference>111 L.Ed.2d 947</cross_reference>.</block_quote>

1. Criminal Law § 103 (NCI4th) — capital sentencing — prior crimes to be introduced by State — disclosure motion properly denied The trial court did not err in the denial of defendant's motion to require the State to disclose evidence of prior crimes or bad acts by defendant that the State intended to introduce at a capital resentencing hearing pursuant to Rule 404(b) since (1) this rule addresses the admissibility of evidence and is not a discovery statute which requires the State to disclose such evidence as it might introduce thereunder; (2) the State did not directly introduce or use evidence of prior crimes or bad acts committed by defendant but only cross-examined defendant about the acts; and (3) the motion did not request a copy of defendant's criminal record, and defendant's failure to make such a request waived his right to discovery of his record under N.C.G.S. § <cross_reference>15A-903</cross_reference>(c). N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 404(b) (1992). Am Jur 2d, Depositions and Discovery § 438. 2. Jury § 141 (NCI4th) — capital sentencing — jury voir dire — beliefs about parole eligibility — questions properly excluded The trial court properly denied defendant's oral motion for permission to question potential jurors in a capital sentencing proceeding regarding their beliefs about parole eligibility where defendant would have been eligible for parole had he been given a life sentence. Am Jur 2d, Jury §§ 201, 202. 3. Criminal Law § 1303 (NCI4th); Jury § 70 (NCI4th) — capital sentencing — defendant's life sentence for rape — instruction to prospective jurors not required The trial court did not err by denying defendant's request that prospective jurors in a resentencing hearing for first-degree murder be instructed during preselection that defendant had received a life sentence for first-degree rape of the victim since nothing in N.C.G.S. § <cross_reference>15A-1213</cross_reference> or in the case law requires the court to<page_number>Page 506</page_number> instruct prospective jurors about sentences defendant may have received for other offenses either related or unrelated to the crime for which the jurors ultimately selected will recommend sentencing. The Court did not reach the merits of defendant's argument that he was entitled to present his life sentence to the jury as mitigating evidence pursuant to <italic>Lockett</italic> <italic>v. Ohio</italic>, <cross_reference>438 U.S. 586</cross_reference>, and its progeny because defendant never moved to introduce the rape sentence at any time during the evidentiary phase of the resentencing proceeding. Am Jur 2d, Criminal Law § 600; Jury §§ 189 et seq. 4. Constitutional Law § 230 (NCI4th); Criminal Law § 412 (NCI4th) — capital resentencing — statement to jury panel — opening statement — aggravating circumstance not submitted in prior hearing — comments not in bad faith The prosecutor did not act in bad faith in a third capital sentencing proceeding by his comments to the prospective jury panel and in his opening statement that the State intended to rely on the especially heinous, atrocious, or cruel aggravating circumstance when he knew that this aggravating circumstance had not been submitted to the jury in the second sentencing proceeding, and the trial court was not required to intervene <italic>ex</italic> <italic>mero motu</italic>, where the prosecutor also knew that this circumstance had been submitted and found in the first sentencing proceeding and that, though the circumstance was not submitted in the second proceeding, on appeal the N.C. Supreme Court did not address the question of whether the evidence was sufficient to support this circumstance. Am Jur 2d, Trial §§ 513 et seq. 5. Criminal Law § 1309 (NCI4th) — capital resentencing — questions about victim's wounds — no injection of heinous, atrocious, or cruel aggravating circumstance into hearing The prosecutor did not improperly inject the especially heinous, atrocious, or cruel aggravating circumstance into a capital resentencing hearing by asking witnesses about the victim's defensive and other wounds when he knew that this circumstance was not submitted to the jury in a prior sentencing hearing where the prosecutor's questions did not refer specifically to the circumstance and were relevant to sentencing because the jury had to hear evidence concerning the offense in order to<page_number>Page 507</page_number> consider the aggravating circumstance of whether the capital felony was committed while the defendant was engaged in the commission of a rape. Am Jur 2d, Criminal Law §§ 598, 599. 6. Criminal Law § 455 (NCI4th) — capital sentencing — prosecutor's argument — death penalty — deterrence of defendant — not comment about parole The prosecutor's jury argument in a capital resentencing hearing that the only way to be sure that defendant never did this again is to give him the death penalty did not suggest to the jury that defendant might be released on parole if sentenced to life and was not improper since the prosecutor never mentioned parole or the consequences of life imprisonment, and specific deterrence arguments and arguments that death will have a deterrent effect on defendant personally are permissible during the penalty phase of a capital trial. Am Jur 2d, Trial §§ 572 et seq. <block_quote> Prejudicial effect of statement of prosecutor as to possibility of pardon or parole. 16 ALR3d 1137.</block_quote> 7. Criminal Law § 1361 (NCI4th) — capital sentencing — impaired capacity mitigating circumstance — intoxication — instructions The trial court's statement in its instructions to the jury on the mitigating circumstance of impaired capacity in a capital sentencing proceeding that "generally voluntary intoxication is no excuse for crime" could not have misled jurors to interpret impaired capacity as excluding impairment due to voluntary gasoline or alcohol intoxication since (1) it was immediately followed by the statement that a juror would find this circumstance if he or she found that defendant sniffed gas, drank beer or was of low intelligence so that his capacity to appreciate the criminality of his conduct was impaired, and (2) the statement, when considered in context of the whole instruction, merely reiterated the court's prior instruction that a finding of a mitigating circumstance is not the equivalent of excusing the crime and in essence assured the jury that it would not be excusing defendant of culpability for the murder if it were to find the mitigating circumstance. Am Jur 2d, Criminal Law §§ 598, 599.<page_number>Page 508</page_number> 8. Criminal Law § 452 (NCI4th) — capital sentencing — prosecutor's argument — gasoline inhalation — voluntary intoxication — impaired capacity mitigating circumstance — proper comment on weight The prosecutor did not improperly urge the jury in a capital resentencing hearing to reject voluntary gasoline inhalation as mitigating because it does not qualify as an excuse for the crime when he stated in his closing argument, "He goes and voluntarily does that, and voluntary intoxication of any kind is no excuse for any crime in this State. If it was, he would have been found not guilty by reason of insanity," where these statements were immediately followed by statements to the effect that a doctor's testimony indicated that defendant's appreciation of the criminality of his actions might have been impaired but that the possible impairment was insignificant in light of the brutal attack on the victim. In the context of the whole argument, the prosecutor's statements were directed to the weight the jury should give the impaired capacity mitigating circumstance. Am Jur 2d, Trial §§ 572 et seq. 9. Criminal Law § 1358 (NCI4th) — capital sentencing — mental or emotional disturbance mitigating circumstance — possible sources — propriety of instructions The trial court did not err by failing to include personality disorder and borderline intelligence as grounds for considering the mental or emotional disturbance mitigating circumstance in an instruction which included the effects of gasoline sniffing and alcohol consumption as evidence of this circumstance where the instruction did not preclude the jurors from considering other evidence in addition to gasoline sniffing and alcohol consumption; neither of defendant's experts stated that, at the time defendant murdered the victim, he was under the influence of a mental or emotional disturbance as a result of a borderline I.Q. or a personality disorder; defendant's experts did testify that defendant suffered from a lowered I.Q., neurological damage, impaired attention span, and impulse control problems as a result of his long-term inhalation of gasoline; and the instruction thus accorded with defendant's evidence in that the jury could consider defendant's lower intellectual functioning as one of the effects of his substance abuse. Furthermore, the trial court's use of the<page_number>Page 509</page_number> conjunctive in this instruction accorded with defendant's evidence that the effects of gasoline inhalation and alcohol intoxication interact with each other and cause a greater effect than if administered separately and was not plain error. Am Jur 2d, Criminal Law §§ 598, 599. <block_quote> Comment Note. — Mental or emotional condition as diminishing responsibility for crime. 22 ALR3d 1228.</block_quote> <block_quote> Effect of voluntary drug intoxication upon criminal responsibility. 73 ALR3d 98.</block_quote> 10. Criminal Law § 1360 (NCI4th) — capital sentencing — impaired capacity mitigating circumstance — possible sources — propriety of instructions The trial court did not err by failing to mention defendant's personality disorder as a possible source of the impaired capacity mitigating circumstance in an instruction which included gasoline inhalation, alcohol consumption and low intelligence as possible causes of this circumstance where defendant's experts did not link defendant's personality disorders to any impairment in capacity; one expert stated that they were the result of substance abuse; and the instruction did not preclude the jury from considering other evidence. Furthermore, the trial court's use of the conjunctive in this instruction accorded with defendant's evidence which concentrated on the combined effects of gasoline inhalation, alcohol consumption and lower intelligence and was not plain error. Am Jur 2d, Criminal Law §§ 598, 599. <block_quote> Comment Note. — Mental or emotional condition as diminishing responsibility for crime. 22 ALR3d 1228.</block_quote> <block_quote> Effect of voluntary drug intoxication upon criminal responsibility. 73 ALR3d 98.</block_quote> 11. Criminal Law § 1355 (NCI4th) — capital sentencing — mitigating circumstance — no significant criminal history — use of "little, if any" in instruction — no plain error The trial court's use of the phrase "little, if any" prior criminal activity in its instruction on the no significant history of criminal activity mitigating circumstance was not plain error when considered in context where the instruction correctly informed the<page_number>Page 510</page_number> jury that, in determining the significance of defendant's criminal history, it should consider the nature and quality of defendant's activity rather than focus solely on the number of acts; no evidence of prior convictions and only a small amount of evidence of prior criminal activity by defendant was presented, so that a reasonable juror was unlikely to have found that defendant had a significant number of prior acts or convictions and rejected this mitigating circumstance on that basis alone; and the phrase was in the form of "would find," which suggests a possibility, rather than "must find," which would operate as a condition to making the finding. Am Jur 2d, Criminal Law §§ 598, 599. 12. Criminal Law § 1326 (NCI4th) — capital sentencing — mitigating circumstances — burden of proof — instructions The trial court's failure to define "preponderance of the evidence" of its own accord in its instructions on defendant's burden of proof for mitigating circumstances was not plain error. Nor was there plain error in the trial court's explanation that "preponderance of the evidence" requires that the evidence "satisfy" the juror that the circumstance exists. Am Jur 2d, Trial §§ 1441 et seq. 13. Criminal Law § 1323 (NCI4th) — capital sentencing — nonstatutory mitigating circumstances — mitigating value — instruction The trial court did not err by instructing the jury that it could consider nonstatutory mitigating circumstances if it found that such circumstances existed and that such circumstances had mitigating value. Am Jur 2d, Trial §§ 1441 et seq. 14. Criminal Law §§ 1357, 1360 (NCI4th) — capital sentencing — rejection of mitigating circumstances by jury — no constitutional or statutory violation The rejection by all jurors in a capital sentencing hearing of the mental or emotional disturbance and impaired capacity mitigating circumstances was not arbitrary and did not violate either the Eighth Amendment of the U.S. Constitution or N.C.G.S. § <cross_reference>15A-2000</cross_reference>(d)(2) where the evidence presented as to these circumstances was not uncontroverted as defendant contended,<page_number>Page 511</page_number> and a reasonable juror could have found that the testimony of defendant's experts was not inherently credible. N.C.G.S. §§ <cross_reference>15A-2000</cross_reference>(f)(2), <cross_reference>15A-2000</cross_reference>(f)(6). Am Jur 2d, Criminal Law §§ 598, 599. 15. Criminal Law § 1373 (NCI4th) — death penalty not excessive or disproportionate A sentence of death imposed upon defendant for first-degree murder was not excessive or disproportionate to the penalty imposed in similar cases, considering the crime and the defendant, where defendant was found guilty based on both the felony murder rule and malice, premeditation and deliberation; the jury found no mitigating circumstances and found as an aggravating circumstance that the murder was committed while defendant was engaged in the commission of a rape; and the evidence tended to show: the twenty-eight-year-old defendant broke into the victim's home and brutally killed her by sixteen blows with a hatchet to her head, neck, back, arms and hands; defendant raped the victim while she was still alive; defendant showed no remorse for the crime; and after the murder, defendant returned to a barn, hid the hatchet, changed clothes, and slept. Am Jur 2d, Criminal Law § 628. <block_quote> Supreme Court's views on constitutionality of death penalty and procedures under which it is imposed or carried out. <cross_reference>90 L.Ed.2d 1001</cross_reference>.</block_quote> <block_quote> Validity of death penalty, under Federal Constitution, as affected by consideration of aggravating or mitigating circumstances — Supreme Court cases. <cross_reference>111 L.Ed.2d 947</cross_reference>.</block_quote>

1. Homicide § 230 (NCI4th) — noncapital first-degree murder — sufficiency of evidence The trial court did not err by denying defendant's motion to dismiss a first-degree murder charge for insufficient evidence that defendant was the perpetrator of the offense where the evidence would permit the jury to find that the defendant took Johnny Beck and the victim in his Pathfinder to a cul-de-sac; the jury could reasonably infer that these three individuals smoked cocaine there from defendant's statement and the dry matches and plastic bags found in the cul-de-sac; the evidence tended to show that defendant became upset when the victim refused to have sex and that he hit her; the jury could reasonably infer from the evidence that the defendant was out of the Pathfinder and participating when the blows, stabs, and cuts were inflicted on the victim; and the jury could reasonably infer that two assailants attacked the victim at the same time and that the defendant was one of the assailants from evidence tending to show that two weapons were involved and that wounds were inflicted by different weapons on opposite sides of the victim's body. Am Jur 2d, Homicide §§ 425 et seq. 2. Homicide § 244 (NCI4th) — first-degree murder — premeditation and deliberation — sufficiency of evidence There was sufficient evidence in a noncapital first-degree murder prosecution where premeditation and deliberation could be inferred from the number of wounds and the brutal manner in which they were inflicted, as well as from defendant's attempt to cover up his actions in his statements to the police. Am Jur 2d, Homicide §§ 437 et seq. 3. Criminal Law § 794 (NCI4th) — noncapital first-degree murder — instructions — acting in concert There was sufficient evidence to support the trial court's instructions on acting in concert in a noncapital prosecution for first-degree murder where the evidence in the case would support a reasonable finding that the defendant was present and acting in<page_number>Page 598</page_number> concert with Johnny Beck as they picked up the victim to "party" with them and that the defendant and Beck formed a common purpose to murder Thomas after she had "partied" for some time at the defendant's expense and would not proceed with bargained-for sex acts. Am Jur 2d, Trial §§ 1255, 1256. 4. Evidence and Witnesses § 1912 (NCI4th) — noncapital first-degree murder — bloodhound's actions — admissible There was no error in a noncapital first-degree murder prosecution in the admission of evidence of a bloodhound's actions in tracking the victim where defendant contended that the testimony failed the test for admissibility in <italic>State v. McLeod</italic>, <cross_reference>196 N.C. 542</cross_reference>, as to the bloodhound's pedigree, training, reliability, and the way in which she was keyed to the scent. Am Jur 2d, Evidence §§ 575, 576. <block_quote> Evidence of trailing by dogs in criminal cases. 18 ALR3d 1221.</block_quote> 5. Criminal Law § 427 (NCI4th) — noncapital first-degree murder — prosecutor's closing arguments — defendant's failure to testify There was no plain error in a noncapital first-degree murder prosecution where the prosecutor stated in his closing argument that "Generally in a homicide, there's two kinds of parties there, the victim who can't say anything, and the perpetrator, who won't say anything" and later said, when arguing that there was no logical explanation as to why the defendant's vehicle was found near a ravine, "The defendant has got to explain something to you. But what he has explained is absurd." The first comment did not mention the defendant or his failure to testify; the prosecutor was simply contending that the absence of eyewitness testimony is common in homicide cases and merely stated that the frequent lack of eyewitness testimony was one of the reasons for the recognition of the legal theory of acting in concert. The second portion of the argument merely attacked the story the defendant had given authorities. Taken in context, this portion of the prosecutor's argument was a comment on the lack of credibility of the defendant's statements to the police and the defendant's failure to produce evidence to corroborate or explain those statements. Moreover, the prosecutor argued to the jury for one and one-half<page_number>Page 599</page_number> hours; the two brief portions of that argument complained of by defendant did not, taken in context, encourage the jury to infer guilt from the defendant's silence and did not amount to gross impropriety. Am Jur 2d, Trial §§ 577 et seq. <block_quote> Violation of federal constitutional rule (<italic>Griffin v.</italic> <italic>California</italic>) prohibiting adverse comment by prosecutor or court upon accused's failure to testify, as constituting reversible or harmless error. 24 ALR3d 1093.</block_quote> 6. Constitutional Law § 161 (NCI4th); Criminal Law § 47 (NCI4th) — noncapital first-degree murder — defendant convicted, charges against accomplice dismissed — no violation of due process and equal protection Defendant's argument that dismissal of murder charges against an accomplice required that his conviction be vacated on due process and equal protection grounds was rejected. <block_quote> Am Jur 2d, Criminal Law §§ 166, 167, 632 et seq., 831 et seq.; Constitutional Law §§ 735 et seq.</block_quote>

1. Limitations, Repose, and Laches § 32 (NCI4th) — real property improvement statute of repose — person in possession and control exclusion — when applicable Subsection (d) of the real property improvement statute of repose, N.C.G.S. § <cross_reference>1-50</cross_reference>(5), excludes from the six-year statute of repose in subsection (a) any person who is in possession or control of property at the time that person's negligent conduct proximately causes injury or damage to the claimant. Am Jur 2d, Building and Construction Contracts § 114. <block_quote> What statute of limitations governs action by contractee for defective or improper performance of work by private building contractor. 1 ALR3d 914.</block_quote> 2. Limitations, Repose, and Laches § 29 (NCI4th) — negligent construction of townhouse — statute of repose — exclusion inapplicable — claim barred Plaintiff's claim for negligent construction and breach of warranty of a townhouse plaintiff purchased from defendant builder was barred by the six-year real property improvement statute of repose set forth in N.C.G.S. § <cross_reference>1-50</cross_reference>(5)(a) where plaintiff purchased the townhouse from defendant more than six years before plaintiff brought her claim; defendant was no longer in possession or control of the property after plaintiff acquired title; and the exclusion in subsection (d) of the statute thus does not apply because defendant was not in possession or control when its allegedly negligent conduct proximately caused plaintiff's damage. Am Jur 2d, Building and Construction Contracts § 114. <block_quote> What statute of limitations governs action by contractee for defective or improper performance of work by private building contractor. 1 ALR3d 914.</block_quote><page_number>Page 683</page_number>

1. <bold>Evidence and Witnesses § 2994 (NCI4th) — cross-examination</bold> <bold>of defendant — prior convictions — guilty pleas — prayer</bold> <bold>for judgment continued</bold> The trial court in a first-degree murder prosecution did not err by permitting the State to cross-examine defendant regarding prior guilty pleas to cocaine charges on which prayer for judgment had been continued pending the disposition of the murder charge where defendant was told by his attorney and by the judge during the plea hearing on the cocaine charges that the entry of guilty pleas had potential consequences in his pending murder trial and, further, that these convictions could be used to enhance punishment if he were convicted of less than first-degree murder, and the trial judge determined that defendant understood the impact of his guilty pleas and accepted the pleas after finding a factual basis for them. <bold>Am Jur 2d, Witnesses § 570</bold>. <block_quote> <bold>Permissibility of impeaching credibility of witness by</bold> <bold>showing verdict of guilty without judgment of sentence thereon.</bold> <bold>28 ALR4th 647</bold>.</block_quote> <bold>2. Evidence and Witnesses § 930 (NCI4th) — exculpatory</bold> <bold>statement — hour after shooting — not excited utterance</bold> An exculpatory statement about the shooting of the victim made by defendant to the aunt with whom he lived was not admissible as an excited utterance and was properly excluded as hearsay in this first-degree murder trial where defendant first talked with his aunt on the telephone after the shooting from his grandmother's house but did not mention the shooting, and defendant waited until he went to his aunt's home an hour after the shooting to tell her what had happened, since defendant had<page_number>Page 780</page_number> time to manufacture the statement and the statement lacked spontaneity. N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 803(2). <bold>Am Jur 2d, Evidence §§ 865, 882</bold>. <block_quote> <bold>When is hearsay statement an "excited utterance" admissible</bold> <bold>under Rule <cross_reference>803</cross_reference>(2) of the Federal Rules of Evidence. 48 ALR Fed</bold> <bold>451</bold>.</block_quote> <bold>3. Evidence and Witnesses § 3169 (NCI4th) — pretrial statement</bold> <bold>— admission for corroboration — significant discrepancies</bold> <bold>— harmless error</bold> A witness's pretrial statement contained significant discrepancies from his testimony in a murder trial as to whether defendant handed the murder weapon to the killer just prior to the killing and whether the killer was responding to defendant's request when he shot the victim, and the trial court erred by admitting the statement into evidence as corroboration of the witness's trial testimony. However, this error was harmless where other witnesses testified that defendant gave the killer the gun and that defendant admitted giving the gun to the killer, and there was overwhelming evidence that the killer listened to or carried through on defendant's advice to shoot the victim. <bold>Am Jur 2d, Witnesses §§ 641 et seq</bold>.

<bold>Evidence and Witnesses § 1250 (NCI4th) — invocation of rights to</bold> <bold>silence and counsel — F.B.I. agent's testimony — harmless</bold> <bold>error</bold> Assuming <italic>arguendo</italic> that the trial court in a first-degree murder prosecution erred by failing to sustain defendant's objection and grant his motion to strike testimony by an F.B.I. agent who arrested defendant for unlawful flight to avoid prosecution that he asked defendant "if he was willing to make a statement, at which time he said he wanted to consult with an attorney before talking about the arresting matter," this error was harmless beyond a reasonable doubt where (1) any violation of defendant's rights was <italic>de minimis</italic> because the testimony was not solicited by the prosecutor, was offered by the F.B.I. agent simply to explain why he discontinued questioning of the defendant, and was not further emphasized by additional questions or comments; (2) the State did not refer in closing arguments to defendant's exercise of his rights to remain silent and to request counsel during interrogation, defendant was not cross-examined on the matter, and no other witness made any reference to defendant's invocation of his rights; and (3) the evidence against defendant was overwhelming, and the record reveals that the sources of defendant's credibility problems were his flight from this state, his efforts to conceal his identity from police, and the fact that his testimony that he shot the victim in defense of himself and another person was contradicted by all other evidence in the case,<page_number>Page 790</page_number> including testimony by the person in whose defense defendant testified that he acted. <block_quote> <bold>Am Jur 2d, Criminal Law §§ 788 et seq.; Evidence §§ 749 et</bold> <bold>seq</bold>.</block_quote>

<bold>Appeal and Error § 139 (NCI4th) — judgment n.o.v. on contributory</bold> <bold>negligence issue — new trial on damages issue — order</bold> <bold>immediately appealable</bold> In a wrongful death action arising from defendant driver's alleged negligence in the operation of a motor vehicle, the trial court's interlocutory order granting plaintiff's motion for judgment notwithstanding the verdict on the issue of decedent's contributory negligence and ordering a new trial on the issue of damages affected a substantial right of the defendants under N.C.G.S. §§ <cross_reference>1-277</cross_reference>(a) and <cross_reference>7A-27</cross_reference>(d) and was immediately appealable to the Court of Appeals. <bold>Am Jur 2d, Appeal and Error §§ 47 et seq., 123 et seq</bold>.