Volume 341 — North Carolina Reports

<bold>1. Homicide § 226 (NCI4th) — defendant as perpetrator of murder —</bold> <bold>sufficiency of evidence</bold> There was substantial evidence from which the jury could conclude that defendant was the one who shot and killed her husband where uncontroverted evidence showed that defendant never left her mobile home from the time she went to bed until the time the police arrived pursuant to her emergency phone call; in the interim her husband was shot in the head while in the mobile home; the victim and defendant owned several pistols, all of which the police found in the mobile home; one of the pistols was the murder weapon; and defendant made an inculpatory statement when she went to the funeral home to view her husband's body, <italic>i.e</italic>., "Why did you make me do it?". <bold>Am Jur 2d, Homicide § 435</bold>. <bold>2. Homicide § 244 (NCI4th) — premeditation and deliberation —</bold> <bold>sufficiency of evidence</bold> There was sufficient evidence of premeditation and deliberation to support defendant's conviction for first-degree murder where the evidence that the victim was shot in the back of the head while sleeping showed that the shooting was without provocation, and evidence that defendant knew the location of guns in the house, took one of the guns at night, shot her husband as he slept, replaced the gun, and took measures to leave no fingerprints or removed her fingerprints from the gun showed that defendant thought about killing her husband and carried out her intention in a cool state of blood. <bold>Am Jur 2d, Homicide § 439</bold>. <block_quote> <bold>Homicide: presumption of deliberation or premeditation from the</bold> <bold>circumstances attending the killing. 96 ALR2d 1435</bold>.</block_quote><page_number>Page 37</page_number> <bold>3. Homicide § 393 (NCI4th) — premeditation and deliberation —</bold> <bold>effect of defendant's intoxication</bold> There was no merit to defendant's contention that evidence of her voluntary intoxication required the trial court to instruct the jury on second-degree murder because her consumption of alcohol and cocaine negated her ability to premeditate and deliberate where officers testified that defendant was not as emotional as most people were in such situations and that they found cocaine and more than a case of empty beer cans in the bedroom where she was sleeping; there was no direct evidence of recent consumption of alcohol or drugs; evidence tended to show that defendant acted in a rational manner in her conversations with the police from the time she made the emergency phone call; and such evidence, at best, tended to show defendant's mere intoxication. <bold>Am Jur 2d, Homicide § 448</bold>. <block_quote> <bold>Modern status of the rules as to voluntary intoxication as defense</bold> <bold>to criminal charge. 8 ALR3d 1236</bold>.</block_quote> <block_quote> <bold>Modern status of test of criminal responsibility — state cases. 9</bold> <bold>ALR4th 526</bold>.</block_quote> <bold>4. Evidence and Witnesses § 1259 (NCI4th) — defendant's statement to</bold> <bold>police — right to silence not invoked</bold> Admission of testimony by a deputy regarding defendant's statements that she had "blacked out" and could not remember anything and the prosecutor's subsequent cross-examination of defendant about those statements did not violate defendant's Fifth Amendment right to silence, since defendant's statements, though made while she was in custody, were not the result of police interrogation; and defendant's statement that she could not remember anything did not invoke her right to silence but instead could only be construed as her indication that she would willingly have discussed the case had she been able to recall further information. <bold>Am Jur 2d, Criminal Law § 793; Evidence § 749</bold>. <bold>5. Evidence and Witnesses § 173 (NCI4th) — victim's statements to</bold> <bold>others about marriage — admissibility to refute defendant's</bold> <bold>assertions</bold> In a prosecution of defendant for the murder of her husband, testimony by two witnesses repeating statements about defendant's<page_number>Page 38</page_number> drug use and problems in his marriage made to them by the victim shortly before his death were admissible under the state-of-mind exception to the hearsay rule and were relevant to rebut defendant's earlier testimony characterizing her marital relationship with the victim as "fine" and "excellent." N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 803(3). <bold>Am Jur 2d, Evidence § 667</bold>. <bold>6. Evidence and Witnesses § 1113 (NCI4th) — inculpatory</bold> <bold>statement — admission of party opponent — admissibility</bold> In a prosecution of defendant for the murder of her husband, the trial court did not err in admitting defendant's statement, "Honey, why did you make me do it?" while she was viewing her husband's body at the funeral home, since the statement was too ambiguous to be incriminating and was an admission by a party opponent within the purview of N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 801(d)(A); the statement was obviously relevant; and the admission, though prejudicial to defendant, was not unfairly so. <bold>Am Jur 2d, Evidence § 760; Homicide § 337</bold>. <bold>7. Evidence and Witnesses § 2089 (NCI4th) — defendant's demeanor at</bold> <bold>crime scene — admissibility of investigating officers' testimony</bold> In a prosecution of defendant for the murder of her husband, the trial court did not err in allowing the testimony of the investigating officers which related to defendant's lack of emotion at the scene of the killing, since the testimony stemmed from the officer's personal experience combined with their observation of defendant, was helpful to a clear understanding of a relevant issue, and had probative value which was not outweighed by the danger of unfair prejudice. N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 701. <bold>Am Jur 2d, Expert and Opinion Evidence §§ 359, 364</bold>. <bold>8. Criminal Law § 750 (NCI4th) — reasonable doubt — instruction</bold> <bold>proper</bold> The trial court's instruction on reasonable doubt was proper in this first-degree murder case. <bold>Am Jur 2d, Trial §§ 1291, 1371</bold>.

<bold>1. Homicide § 382 (NCI4th) — argument initiated by murder victim —</bold> <bold>argument quit by victim — defendant as aggressor — jury question</bold> The trial court properly allowed the jury to determine whether defendant was the aggressor where the evidence tended to show that the victim initially went to defendant's home and began to argue with him, but immediately before she was shot she had straightened her car up to go out of the driveway and was about to leave; furthermore, the evidence also reflected that the victim was shot from the side and from behind, further supporting the inference that defendant shot at the victim only after the victim had quit the argument and was trying to leave. <bold>Am Jur 2d, Homicide § 448</bold>. <bold>2. Criminal Law § 497 (NCI4th) — State's exhibits taken to jury room</bold> <bold>over defendant's objection — error not prejudicial</bold> Through the trial court erred in permitting the jury, over defendant's objection, to take State's exhibits into the jury room, including photographs from the crime scene and autopsy, a copy of defendant's confession, a witness's statement to police, and a diagram of the crime scene, defendant was not prejudiced where he failed to show that there was a reasonable possibility that, had the exhibits not been allowed in the jury room, the outcome of the trial would have been different. N.C.G.S. § <cross_reference>15A-1233</cross_reference>(b) <bold>Am Jur 2d, Trial §§ 1668, 1669, 1672, 1678, 1680</bold>. <block_quote> <bold>Permitting documents or tape recordings containing confessions of</bold> <bold>guilt or incriminating admissions to be taken into jury room in criminal</bold> <bold>case. 37 ALR3d 238</bold>.</block_quote> <bold>3. Criminal Law § 497 (NCI4th) — evidence allegedly favorable to</bold> <bold>defendant — denial of jury's request to review — defendant not</bold> <bold>prejudiced</bold> The trial court did not abuse its discretion when it denied the jury's request to review the trial testimony of two witnesses which was favorable to defendant while allowing review of testimony<page_number>Page 80</page_number> favorable to the State, since the evidence and exhibits reviewed by the jury were not inconsistent with the testimony not reviewed by the jury; nothing in the record supported defendant's contention that the trial court's decision not to allow this testimony to be reconsidered by the jury was so arbitrary that it could not have been the result of a reasoned decision; and even if the trial court did abuse its discretion, defendant failed to show how he was prejudiced by this decision. <bold>Am Jur 2d, Trial §§ 1685, 1687, 1688</bold>. <bold>4. Criminal Law § 747 (NCI4th) — trial court's instruction on</bold> <bold>confession — no improper expression of opinion</bold> The evidence was sufficient to support the trial court's instruction that there was evidence tending to show that defendant confessed that he committed the crime charged where defendant stated in his confession that he pulled a gun out of his pocket, cocked it, intended to scare the victim by shooting between her and the windshield, and shot at the car three times; furthermore, the trial court did not impermissibly express an opinion in characterizing defendant's statement as a confession. <bold>Am Jur 2d, Trial §§ 1197, 1204-1207</bold>.

<bold>1. Appeal and Error § 155 (NCI4th) — murder — instructions on aiding and</bold> <bold>abetting and acting in concert — objection at trial different from</bold> <bold>argument on appeal — reviewed as plain error</bold> A first-degree murder defendant's contentions as to instructions on aiding and abetting and acting in concert were reviewed<page_number>Page 157</page_number> under the plain error standard where defendant did not object at trial on the ground upon which he asserts error on appeal. <bold>Am Jur 2d, Trial § 1464</bold>. <bold>2. Criminal Law § 792 (NCI4th) — murder — acting in concert — aiding</bold> <bold>and abetting — instructions</bold> Although the trial court in a first-degree murder prosecution could have been more precise in denominating an acting in concert instruction as such and could have been more explicit in informing the jurors when it was moving from the portions of its instructions relating to acting in concert to those relating to aiding and abetting, and even when it is assumed that the trial court erred when it inserted the words "acting in concert" in its final mandate on aiding and abetting, there was no plain error because the instructions closely tracked the pattern instructions and the evidence supporting defendant's guilt on either theory was overwhelming. <bold>Am Jur 2d, Trial §§ 1255, 1256</bold>.

<bold>Indians § 7 (NCI4th) — Cherokee Indian child — AFDC payments and</bold> <bold>child support — retention of tribal court jurisdiction — district</bold> <bold>court jurisdiction — infringement on tribal sovereignty</bold> It would be an infringement on tribal sovereignty for a district court to take jurisdiction of a county's action to recover reimbursement of AFDC payments made to Cherokee Indian children and for an order for future support to be paid by defendant where a claim for support of the children was filed by the mother in the tribal court and the tribal court has retained jurisdiction of that claim. Although the claim of plaintiff county may be separate from any claim of the mother, the claim is still based on defendant's duty to support his children, and the tribal court is available for actions to collect AFDC payments. <bold>Am Jur 2d, Indians § 63</bold>.

<bold>1. Rape and Allied Sexual Offenses § 200 (NCI4th) — second-degree rape — </bold> <bold>attempted rape not submitted — no error</bold> The trial court did not err in a prosecution for second-degree rape and kidnapping by not submitting attempted second-degree rape where defendant denied that penetration occurred but also testified that the event was consensual. If the jury had believed the defendant's evidence, he would have been found not guilty. <bold>Am Jur 2d, Rape § 110</bold>. <bold>2. Appeal and Error § 157 (NCI4th) — second-degree rape — jury request</bold> <bold>to view evidence — communication between foreperson and judge — </bold> <bold>appealable</bold> The issue of whether there was error in a second-degree rape prosecution in a meeting between the judge and the foreperson out of the presence of the other eleven jurors to discuss a request to view evidence was appealable. The State conceded that the failure to object did not prevent defendant from appealing, but contended that defendant consented by not objecting when the court said it would ask only the foreman to return to the courtroom, and also cited the court's statement after if had sent the items to the jury room that it "was done in accordance with the procedure suggested by" defense counsel. This is not sufficient to show the defendant consented to the procedure. <bold>Am Jur 2d, Appellate Review § 222</bold>.<page_number>Page 696</page_number> <block_quote> <bold>Postretirement out-of-court communications between jurors and trial</bold> <bold>judge as grounds for new trial or reversal in criminal case. 43 ALR4th</bold> <bold>410</bold>.</block_quote> <bold>3. Criminal Law § 497 (NCI4th) — second-degree rape — deliberations — </bold> <bold>review of evidence — no prejudicial error</bold> There was no prejudicial error in a prosecution for second-degree rape and kidnapping where the jury sent a note to the judge during deliberations asking to review certain items of evidence and the court asked only the foreperson to return to the courtroom to discuss the request before allowing the evidence to be taken to the jury room. Although it was error not to require all the jurors to return to the courtroom for the questions in regard to the exhibits, there was no prejudice because all of the exhibits which were given to the jury had been introduced into evidence; the court did not give any instructions to the foreman except not to alter or change the exhibits; the court did not give any instructions on the law which could have been misinterpreted by the foreman to the jury; the jury was given what they said they wanted; and the exhibits sent to the jury room were innocuous. <bold>Am Jur 2d, Trial § 1665</bold>.