Volume 338 — North Carolina Reports

<bold>1. Evidence and Witnesses § 963 (NCI4th) — hearsay —</bold> <bold>defendant's statements to psychiatrist — trial preparation</bold> <bold>— medical diagnosis exception inapplicable</bold> Defendant's statements to a psychiatrist were made in preparation for his murder trial and were thus not admissible under the medical diagnosis or treatment exception to the hearsay rule set forth in N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 803(4) where the psychiatrist saw defendant less than two months before trial and nine months after the killing; defense counsel arranged defendant's interview by the psychiatrist; there was no evidence that the psychiatrist planned or proposed any course of treatment; and the psychiatrist's contact with defendant prior to trial was limited to one occasion while defendant was in jail. <bold>Am Jur 2d, Evidence § 867</bold>. <block_quote> <bold>Admissibility of statements made for purposes of medical</bold> <bold>diagnosis or treatment as hearsay exception under Rule <cross_reference>803</cross_reference>(4) of</bold> <bold>the Federal Rules of Evidence. 55 ALR Fed 789</bold>.</block_quote> <bold>2. Evidence and Witnesses § 1025 (NCI4th) — defendant's</bold> <bold>statements to psychiatrist — inadmissibility as statements</bold> <bold>against penal interest</bold> Defendant's statements to a psychiatrist were not admissible as statements against penal interest pursuant to N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 804(b)(3), even if defendant may assert his own unavailability, because they were not so incriminating "that a reasonable man in his position would not have made the statement[s] unless he believed [them] to be true" where the incriminating statements defendant made to the psychiatrist were similar to statements he had already made to the police; the only additional incriminating information in the statements served only to reduce defendant's potential criminal liability; and the bulk of defendant's statements to the psychiatrist were exculpatory. <bold>Am Jur 2d, Evidence §§ 789 et seq</bold>.<page_number>Page 212</page_number> <block_quote> <bold>What constitutes statement against interest admissible under</bold> <bold>Rule 804(b)(3) of Federal Rules of Evidence. 34 ALR Fed 412</bold>.</block_quote> <bold>3. Evidence and Witnesses § 2241 (NCI4th) — defendant's</bold> <bold>statements to psychiatrist — basis for expert opinion —</bold> <bold>exclusion not prejudicial error</bold> Assuming, arguendo, that statements defendant made to a psychiatrist should have been admitted in defendant's trial for first-degree murder, armed robbery and conspiracy to murder to show the basis for the psychiatrist's expert opinion regarding defendant's mental disorders, defendant was not prejudiced by the exclusion of those statements where the psychiatrist testified that defendant suffered from chronic and acute abuse of marijuana, cocaine and alcohol which would have impaired his ability to form the specific intent to kill; the jury refused to find defendant guilty of first-degree murder based on premeditation and deliberation but found him guilty based on lying in wait and on the felony of armed robbery; there is no reasonable possibility that defendant's convictions for armed robbery and conspiracy were affected by the exclusion of defendant's statements as support for the psychiatrist's diagnosis since a fair reading of the record reveals that his testimony addressed only the crime of murder; and even if the psychiatrist's testimony were construed to indicate that defendant could not form the intent required for armed robbery and could not agree to commit certain acts, the record indicates that defendant's statements to the psychiatrist were of only minimal significance to the psychiatrist's opinions. <bold>Am Jur 2d, Expert and Opinion Evidence §§ 228 et seq</bold>. <bold>4. Evidence and Witnesses § 84 (NCI4th) — murder-robbery —</bold> <bold>evidence irrelevant to facts in issue</bold> In this prosecution for first-degree murder and armed robbery, the trial court did not err in sustaining the State's objections to questions concerning whether defendant's father abandoned him, when defendant's drug use began, the nature of the area where the murder-robbery occurred, and the location of the victim's husband, the reasons he was in jail, and his relationship with the codefendant since the evidence sought to be elicited was not material to any issue in the case; the psychiatrist who testified that defendant suffered from chronic and acute intoxication of cocaine, marijuana and alcohol on the day of the crimes did not<page_number>Page 213</page_number> state that when defendant began using drugs affected his diagnoses; and defendant was permitted to elicit from another witness that the area was known for drug activity. <bold>Am Jur 2d, Evidence §§ 307 et seq</bold>. <bold>5. Evidence and Witnesses § 2302 (NCI4th) — ability to</bold> <bold>premeditate and deliberate — expert opinion properly</bold> <bold>excluded</bold> Opinion testimony by a psychiatrist that defendant could not premeditate and deliberate was properly excluded because it relates to a legal standard. <block_quote> <bold>Am Jur 2d, Expert and Opinion Evidence §§ 193, 194, 362,</bold> <bold>363</bold>.</block_quote> <block_quote> <bold>Admissibility of expert testimony as to whether accused had</bold> <bold>specific intent necessary for conviction. 16 ALR4th 666</bold>.</block_quote> <bold>6. Evidence and Witnesses § 1422 (NCI4th) — rifle, ammunition</bold> <bold>and other items found at defendant's apartment — failure to</bold> <bold>link to crimes charged — admission as harmless error</bold> Assuming arguendo that the trial court in a murder-robbery trial erred by admitting walkie-talkies, a crowbar, a Redfield scope, clips, ammunition, and a .22 caliber bolt-action rifle found in a duffel bag in defendant's apartment because these items were not linked to the crimes charged, there is no reasonable possibility that the admission of these items affected the outcome of the trial in light of the State's minimal reference to these items at trial and the State's other evidence, including defendant's inculpatory statement and firearms found in defendant's apartment which were linked to the crimes. N.C.G.S. §§ <cross_reference>15A-1443</cross_reference>(b). <bold>Am Jur 2d, Evidence §§ 307 et seq</bold>. <bold>7. Jury § 80 (NCI4th) — excusal of jurors for cause — absence</bold> <bold>of prejudice to defendant</bold> Assuming arguendo that the trial court erred by excusing for cause a prospective juror who stated that he had negative feelings toward the district attorney but could apply the law fairly, a juror who indicated that he knew defendant but could give the State and defendant a fair trial, and a juror who stated that he did not want to spend the time necessary for a first-degree murder trial, defendant failed to show that he was prejudiced thereby since a<page_number>Page 214</page_number> defendant is not entitled to any particular juror, and defendant evidenced his satisfaction with the empaneled jury by failing to exhaust his peremptory challenges. <bold>Am Jur 2d, Jury §§ 195 et seq</bold>. <bold>8. Jury § 223 (NCI4th) — death penalty views — improper</bold> <bold>excusal — no prejudice to defendant sentenced to life</bold> Since defendant was not sentenced to death, he was not harmed by any improper exclusion of jurors on the basis of their death penalty views. <bold>Am Jur 2d, Jury §§ 289, 290</bold>. <block_quote> <bold>Comment Note. — Beliefs regarding capital punishment as</bold> <bold>disqualifying juror in capital case — post</bold>-<italic>Witherspoon</italic> <bold>cases.</bold> <bold>39 ALR3d 550</bold>.</block_quote> <bold>9. Jury § 232 (NCI4th) — death qualification of jury —</bold> <bold>constitutionality</bold> The practice of death qualifying the jury did not violate defendant's right to a fair trial. <bold>Am Jur 2d, Jury §§ 289, 290</bold>. <block_quote> <bold>Comment Note. — Beliefs regarding capital punishment as</bold> <bold>disqualifying juror in capital case — post</bold>-<italic>Witherspoon</italic> <bold>cases.</bold> <bold>39 ALR3d 550</bold>.</block_quote> <bold>10. Criminal Law § 427 (NCI4th) — closing argument — opening</bold> <bold>statement facts unsupported by evidence — no comment on</bold> <bold>defendant's failure to testify</bold> Where the evidence did not support facts contained in the opening statements of defendant's counsel, the district attorney's closing argument question "What witness said that?" after referring to certain assertions in the opening statements was a fair response to the opening statements and did not constitute an improper comment on defendant's failure to testify. The defendant's erroneous expectations of the admissibility of certain evidence did not deprive the State of the ability to point out that facts alluded to in opening statements were not supported by the evidence introduced at trial. <bold>Am Jur 2d, Trial §§ 577 et seq</bold>. <block_quote> <bold>Violation of federal constitutional rule</bold> (<italic>Griffin v.</italic> <italic>California</italic>) <bold>prohibiting adverse comment by prosecutor or</bold><page_number>Page 215</page_number> <bold>court upon accused's failure to testify, as constituting reversible</bold> <bold>or harmless error. 24 ALR3d 1093</bold>.</block_quote> <bold>11. Criminal Law § 433 (NCI4th) — closing argument — references</bold> <bold>to defendant as "cold-blooded murderer" and "doper"</bold> It was not improper for the prosecutor to refer to defendant in closing arguments as a "cold-blooded murderer" in a trial for first-degree murder involving a calculated armed robbery and an unprovoked killing. Similarly, where evidence of the State and defendant showed that defendant had a history of drug abuse, the prosecutor's reference to defendant as a "doper," while colloquial, was an accurate term describing the defendant as portrayed by the evidence. <bold>Am Jur 2d, Trial §§ 681, 682</bold>. <block_quote> <bold>Negative characterization or description of defendant, by</bold> <bold>prosecutor during summation of criminal trial, as ground for</bold> <bold>reversal, new trial, or mistrial — modern cases. 88 ALR4th 8</bold>.</block_quote> <bold>12. Criminal Law § 450 (NCI4th) — closing argument — shooting</bold> <bold>victim down "just like a dog</bold> The prosecutor's statement characterizing defendant's act of killing the victim as "shooting her down just like a dog" did not compare defendant to an animal and was not improper. <bold>Am Jur 2d, Trial §§ 681, 682</bold>. <block_quote> <bold>Negative characterization or description of defendant, by</bold> <bold>prosecutor during summation of criminal trial, as ground for</bold> <bold>reversal, new trial, or mistrial — modern cases. 88 ALR4th 8</bold>.</block_quote> <bold>13. Criminal Law § 468 (NCI4th) — closing argument — defense</bold> <bold>strategy as "ingenuity of counsel"</bold> The prosecutor's reference in his closing argument to defense strategy as "ingenuity of counsel" was not so grossly improper as to require the trial judge to intervene <italic>ex mero motu</italic>. <bold>Am Jur 2d, Trial §§ 683 et seq</bold>. <block_quote> <bold>Supreme Court's views as to what courtroom statements made</bold> <bold>by prosecuting attorney during criminal trial violate due process</bold> <bold>or constitute denial of fair trial. <cross_reference>40 L.Ed.2d 886</cross_reference></bold>.</block_quote><page_number>Page 216</page_number>

<bold>Administrative Law and Procedure § 30 (NCI4th) — petition for</bold> <bold>contested case hearing — not timely filed — erroneous</bold> <bold>assertion of superior court jurisdiction — time for filing</bold> <bold>petition tolled</bold> The Court of Appeals erred in holding that the Office of Administrative Hearings was without subject matter jurisdiction over their contested case petition because petitioners failed to file such petition within sixty days of receiving notice of respondents' assessment of civil penalties where the superior court asserted jurisdiction over the assessment and that assertion of jurisdiction was vacated by the Court of Appeals more than sixty days from the notice of assessment. The application of the general rule that the right to appeal an administrative agency ruling is statutory and compliance with statutory provisions is necessary is inappropriate where a party fails to comply with the statutory time requirements because of the superior court's erroneous assertion of jurisdiction. Here, while petitioners stood ready to file a petition for a contested case hearing, they failed to seek administrative review in reliance on the superior court's erroneous assertion of jurisdiction. N.C.G.S. § <cross_reference>150B-23</cross_reference>(f). <bold>Am Jur 2d, Administrative Law §§ 340-375</bold>.

Taxation § 92 (NCI4th) — intangibles tax on corporate stock — no violation of Commerce Clause The North Carolina intangibles tax levied on corporate stock pursuant to N.C.G.S. § 105-203 does not violate the Commerce Clause of the U.S. Constitution because the statute taxes more heavily stock of corporations doing business outside North Carolina since the amount of the intangibles tax is directly and inversely proportional to the income of the issuing corporation which is taxed in North Carolina; the effect is to reduce the intangibles tax liability for stock held in a corporation to the extent the corporation's income is taxed in this state and to increase the intangibles tax liability on stock held in a corporation to the extent the corporation's income is not taxed in North Carolina; a reduction in the intangibles tax to the shareholder is thus offset in a direct proportional way by an income tax to the corporation; and this "compensating tax" scheme provides for substantial equality which satisfies the Commerce Clause. <block_quote> Am Jur 2d, State and Local Taxation §§ 170 et seq., 244 et seq.</block_quote>

1. Criminal Law § 762 (NCI4th) — first-degree murder — instructions — reasonable doubt — moral certainty — no error The trial court did not err in a first-degree murder prosecution by giving an instruction on reasonable doubt which included moral certainty. State v. Bryant, <cross_reference>334 N.C. 333</cross_reference>, was reversed on remand from the U.S. Supreme Court, and, pursuant to the second State v. Bryant, <cross_reference>337 N.C. 298</cross_reference>, the charge in this case was not in error. Am Jur 2d, Trial § 1385. 2. Criminal Law § 439 (NCI4th) — first-degree murder — prosecutor's argument — credibility of prosecutor and State's witnesses The trial court did not err in a first-degree murder prosecution by not intervening ex mero motu to stop a prosecution argument which defendant contended concerned his credibility and that of the State's witnesses. The statements by the prosecuting attorney were more in the nature of giving reasons for the jury to believe the State's evidence than vouching for his own credibility or that of his witnesses. Am Jur 2d, Trial §§ 681, 682, 692 et seq. <block_quote> Negative characterization or description of defendant, by prosecutor during summation of criminal trial, as ground for reversal, new trial, or mistrial — modern cases. 88 ALR4th 8.</block_quote> <block_quote> Propriety and prejudicial effect of counsel's negative characterization or description of witness during summation of criminal trial — modern cases. 88 ALR4th 209.</block_quote> 3. Criminal Law § 438 (NCI4th) — first-degree murder — prosecutor's argument — defendant not truthful The trial court did not err in a first-degree murder prosecution by not intervening ex mero motu to stop a prosecution argument in which defendant contended that the prosecutor called<page_number>Page 484</page_number> him a liar. The prosecutor did not call defendant a liar, but asked the jury to conclude that defendant was lying because he had not told the truth on several occasions, and there was evidence from which the jury could find that defendant had not told the truth at trial. Am Jur 2d, Trial §§ 681, 682. <block_quote> Negative characterization or description of defendant, by prosecutor during summation of criminal trial, as ground for reversal, new trial, or mistrial — modern cases. 88 ALR4th 8.</block_quote> 4. Criminal Law § 442 (NCI4th) — first-degree murder — prosecutor's argument — biblical reference — improper but not prejudicial A prosecutor's argument in a first-degree murder prosecution that the jurors would be blessed by God if they found defendant guilty was not approved, but was not so egregious that the court should have intervened ex mero motu. Am Jur 2d, Trial § 567. <block_quote> Supreme Court's views as to what courtroom statements made by prosecuting attorney during criminal trial violate due process or constitute denial of fair trial. <cross_reference>40 L.Ed.2d 886</cross_reference>.</block_quote> 5. Jury § 127 (NCI4th) — first-degree murder — jury selection — classes in psychology and psychiatry The trial court did not err during jury selection for a first-degree murder prosecution by sustaining an objection to defendant's question as to whether any of the jurors had taken classes in psychology and psychiatry. The court indicated that it would not allow the answer based on what the prospective juror had learned in college; this should have allowed defendant to question the prospective juror about his feelings in regard to psychiatrists and psychologists without reference to college courses. Am Jur 2d, Jury §§ 201, 202. 6. Jury § 148 (NCI4th) — first-degree murder — jury selection — question regarding death penalty forbidden — no prejudice There was no prejudicial error in a first-degree murder prosecution where the trial court forbade defendant from asking a<page_number>Page 485</page_number> prospective juror whether he or she could think of circumstances under which he or she would not impose the death penalty. Not allowing the question was error, but was not prejudicial because defendant peremptorily challenged the prospective jurors to whom the question was addressed and was allowed to ask the other jurors whether they would automatically vote for the death penalty and whether they would vote for life if they felt the evidence did not warrant death. Am Jur 2d, Jury §§ 201, 202. 7. Jury § 145 (NCI4th) — first-degree murder — jury selection — death penalty — statement by court The trial court did not err in a first-degree murder prosecution by making statements which defendant says diminished the responsibility of each individual member of the jury to make an individual decision but the court was correcting an impression which could have been left by defendant's question that a prospective juror alone had to determine defendant's fate. Am Jur 2d, Trial §§ 276 et seq. 8. Evidence and Witnesses § 760 (NCI4th) — first-degree murder — effect of deceased's alcohol level excluded — no prejudicial error There was no prejudicial error in a first-degree murder prosecution where a psychologist was not allowed to testify that a person with the deceased's blood alcohol level would be more irritable and more prone to act on emotions where there was testimony that the deceased was a violent man and wild when drinking. Defendant was able to present stronger evidence of the deceased's violent nature than the testimony of the psychologist. Am Jur 2d, Appeal and Error § 806. 9. Homicide § 612 (NCI4th) — first-degree murder — self-defense — instructions — deceased's hands as deadly weapons The trial court did not err in a first-degree murder prosecution by not instructing the jury that they could find that decedent's hands were a deadly weapon. It may be assumed that the jury knew that a person could kill by choking another person and could have properly determined under the charge given whether<page_number>Page 486</page_number> the defendant was under such assault as would justify taking the life of decedent. Am Jur 2d, Homicide § 498. 10. Criminal Law § 1336 (NCI4th) — first-degree murder — sentencing — aggravating circumstance — prior capital felony The trial court erred during a first-degree murder sentencing hearing by submitting to the jury the aggravating circumstance that defendant had previously been convicted of another capital felony when defendant had pleaded guilty to first-degree murder in Virginia in 1973 and Virginia's death penalty had been held unconstitutional in 1972. The North Carolina General Assembly, when it defined death penalty, meant a crime for which defendant could have received the death penalty. Defendant could not have received the death penalty for the crime to which he pled guilty in Virginia. N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e)(2). Am Jur 2d, Criminal Law §§ 598, 599. <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. Jury § 219 (NCI4th) — capital trial — death penalty views — refusal to return death penalty if polled — excusal for cause The trial court did not err in excusing a prospective juror for cause in a capital trial because of her death penalty views where the juror's responses show that if the recommendation were for death, she could not fulfill a juror's duty to state this when polled. Am Jur 2d, Jury §§ 289, 290. <block_quote> Comment Note. — Beliefs regarding capital punishment as disqualifying juror in capital case — post-Witherspoon cases. 39 ALR3d 550.</block_quote> 2. Evidence and Witnesses § 419 (NCI4th) — identification testimony — not hypnotically refreshed Testimony by a witness that he was "positive" and had "no doubt whatsoever" that he saw defendant with the victim on the morning the victim was murdered did not violate the ban on hypnotically refreshed testimony and was properly admitted where the record shows that the witness positively identified defendant during pre-hypnosis interviews and that the witness's testimony referred to facts he related before his hypnotic session. Am Jur 2d, Evidence § 1019. <block_quote> Admissibility of hypnotic evidence at criminal trial. 92 ALR3d 442.</block_quote> <block_quote> Admissibility of hypnotically refreshed or enhanced testimony. 77 ALR4th 927.</block_quote> 3. Evidence and Witnesses § 2047 (NCI4th) — inferences based on perceptions — rebuttal testimony Where defendant had cross-examined a witness extensively concerning his involvement with a murder victim and his potential involvement in the victim's death, the State was entitled to have an investigating officer testify in rebuttal as to why the witness had been eliminated as a suspect. Therefore, an S.B.I. agent's testimony, in response to an inquiry as to why the witness was a suspect for only a short time, that the witness had no motive for<page_number>Page 527</page_number> the murder was admissible under Rule 701 as an inference rationally based on the perception of the witness and helpful to the determination of a fact in issue. N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 701. <block_quote> Am Jur 2d, Expert and Opinion Evidence §§ 26 et seq., 362, 363.</block_quote> 4. Evidence and Witnesses § 1007 (NCI4th) — hearsay exception — unavailable declarant — sufficient finding of unavailability The trial court made a sufficient preliminary finding that the declarant (a murder victim) was unavailable to testify for the admission under Rule 804 of hearsay testimony by various witnesses who related statements of the victim about threats defendant made against her and her fear of him where ample evidence about the victim's death was presented by the State before the testimony of any of these witnesses; the trial court stated that the issue was "the believability of the declarant . . . [w]ho is unavailable"; and written orders admitting the testimony specified that the statements were those "of the decedent." N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 804. Am Jur 2d, Evidence §§ 690 et seq. <block_quote> Residual hearsay exception where declarant unavailable: Uniform Evidence Rule 804(b)(5). 75 ALR4th 199.</block_quote> 5. Evidence and Witnesses § 1006 (NCI4th) — hearsay exception — unavailable declarant — failure to state rule number The trial court's omission of the rule number from its written orders admitting a murder victim's hearsay statements to certain witnesses was harmless where it is clear from the transcript and nearly identical findings and conclusions in all of the written orders that the testimony was admitted pursuant to N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 804(b)(5). Am Jur 2d, Evidence §§ 690 et seq. <block_quote> Residual hearsay exception where declarant unavailable: Uniform Evidence Rule 804(b)(5). 75 ALR4th 199.</block_quote> 6. Evidence and Witnesses § 1009 (NCI4th) — hearsay statements by murder victim — circumstantial guarantees of trustworthiness — sufficient findings The trial court's conclusion that a murder victim's statements to six witnesses concerning defendant's threats and her fear of<page_number>Page 528</page_number> defendant possessed circumstantial guarantees of trustworthiness was supported by the court's findings that a confidential and trusting relationship existed between the victim and five of the witnesses and that the sixth witness was a law officer acting in the performance of his duty when the victim made the statements to him. Am Jur 2d, Evidence §§ 690 et seq. <block_quote> Residual hearsay exception where declarant unavailable: Uniform Evidence Rule 804(b)(5). 75 ALR4th 199.</block_quote> 7. Homicide § 237 (NCI4th) — first-degree murder — sufficiency of circumstantial evidence The State's evidence, although circumstantial, was sufficient to support defendant's conviction of first-degree murder of his estranged wife where it tended to show that defendant was enraged over the victim's involvement with another man; defendant uttered racial slurs against the other man, hounded, threatened, and assaulted the victim, enlisted and attempted to enlist the aid of family members in intimidating her, and told others he would kill her; defendant both had and anticipated financial difficulties, and neither robbery nor rape was a motive in the victim's death; defendant was seen with the victim on the morning of her disappearance under circumstances which permitted an inference that he was restraining her; during the interval before the victim was found, defendant suggested that one person could overcome her strength by tying her up, and medical evidence showed that the victim's ankles and wrists had been bound and something had been around her neck; during the same interval there were times in which defendant's whereabouts were unknown and a car like one to which he had access was seen on the road where the victim's body was found, an area well known to defendant and near his home; the victim was murdered in the exact way in which defendant told others he would kill her; defendant possessed a shotgun of the same type as the murder weapon; and defendant indicated by his actions on the morning when the victim was found that he had independent knowledge of the location of her body. Am Jur 2d, Homicide §§ 425 et seq.<page_number>Page 529</page_number> 8. Robbery § 55 (NCI4th) — common law robbery — sufficiency of evidence The State's evidence was sufficient to support the trial court's submission of an issue of defendant's guilt of common law robbery to the jury where it tended to show that the victim, defendant's estranged wife, managed a convenience store; the store's currency receipts were placed in the safe when the store was closed at the end of the day and the start-up money for the following day was concealed in the back room; on the next morning, when the victim usually arrived at the store, defendant was seen holding her outside the store; the victim was abducted from the store and later found shot to death; a deputy sheriff discovered the open safe and empty cash register; over $2500 was missing from the store, and the disappearance of the money was discovered around thirty minutes after defendant was seen with the victim outside the store; the victim left the store without her pocketbook; and circumstantial evidence tended to show that defendant killed the victim. All of the evidence supports an inference that the victim did not voluntarily part with the money belonging to the store and that it was taken concurrently with her abduction. Am Jur 2d, Robbery §§ 62 et seq. 9. Kidnapping and Felonious Restraint § 21 (NCI4th) — first-degree kidnapping — removal and restraint to kill victim — sufficiency of evidence The evidence was sufficient to support defendant's conviction for first-degree kidnapping because it supported an inference that defendant forcibly removed the victim from the convenience store she managed and restrained her for many hours for the purpose of killing her where it tended to show that defendant was seen restraining the victim outside the store within thirty minutes before here disappearance was discovered; the victim's pocketbook remained in the store and her car remained parked outside; the victim was found the next day shot to death; and after her body was discovered, an autopsy showed that her stomach was empty, her bladder was full, and her ankles, wrists and neck had been bound. Am Jur 2d, Abduction and Kidnapping § 32. <block_quote> Seizure or detention for purpose of committing rape, robbery, or similar offense as constituting separate crime of kidnapping. 43 ALR3d 699.</block_quote><page_number>Page 530</page_number> 10. Criminal Law § 762 (NCI4th) — instruction on reasonable doubt — use of "moral certainty" and "substantial misgiving" — no error The trial court did not err in its use of "moral certainty" language twice in its instruction on reasonable doubt where the remainder of the instruction lent content to the phrase, and there is no reasonable likelihood the jury understood moral certainty to be disassociated from the evidence in defendant's case. Nor was the instruction erroneous because of any combination of terms used in the definition of reasonable doubt or because it included the words "substantial misgiving." Am Jur 2d, Trial § 1385. 11. Criminal Law § 709 (NCI4th) — instructions — lapsus linguae — absence of prejudice The trial court's lapsus linguae in instructing the jury to return a verdict of "guilty" rather than "not guilty" if it had "a reasonable doubt as to one or more of these things" was not prejudicial error where the lapsus linguae was not called to the attention of the trial court when made; the trial court repeatedly instructed the jury that the State had the burden of proving defendant guilty beyond a reasonable doubt; the court also instructed that "[a]fter weighing all the evidence, if you are not convinced of the guilt of defendant beyond a reasonable doubt, you must find him not guilty"; and it is thus apparent from a contextual reading of the charge that the jury could not have been misled by the instruction. Am Jur 2d, Trial § 1127. 12. Criminal Law § 1355 (NCI4th) — capital sentencing — mitigating circumstance — no significant criminal history — improper submission The trial court erred by failing to properly submit the statutory mitigating circumstance of "no significant history of prior criminal activity" to the jury in a capital sentencing proceeding where the evidence showed that defendant's criminal record was limited to one conviction for driving while impaired and that his criminal history included threats against, and at least one assault on, the victim; the court varied the language of this statutory mitigating circumstance by submitting an issue as to whether "defendant has no record of criminal convictions," thus ignoring<page_number>Page 531</page_number> evidence of defendant's uncharged crimes; although the trial court's instructions included language directing the jurors to consider whether defendant had any significant history of prior criminal activity, the jury's consideration of this circumstance was limited to defendant's criminal record when the court stated that the jury should find this circumstance if it found that defendant has one conviction of driving while impaired on his record; and the trial court's instructions erroneously permitted the jurors, if they found this circumstance to exist, to decide whether to give it weight or value. Am Jur 2d, Criminal Law §§ 598, 599. 13. Criminal Law § 1354 (NCI4th) — capital sentencing — issues and recommendation form — statutory mitigating circumstances — mitigating value The trial court erred by submitting an issues and recommendation form to the jury in a capital trial which permitted the jury to determine whether the two statutory mitigating circumstances, as well as the five nonstatutory mitigating circumstances, submitted to the jury had mitigating value. If the jury finds the existence of a statutory mitigating circumstance, it may not refuse to give it weight or value. Am Jur 2d, Criminal Law §§ 598, 599. 14. Criminal Law § 1334 (NCI4th) — capital sentencing — aggravating circumstances — denial of motion for bill of particulars The trial court did not err in denying defendant's motion for a bill of particulars disclosing the statutory aggravating circumstances on which the State intended to rely in seeking the death penalty. Am Jur 2d, Criminal Law §§ 598, 599.