Volume 342 — North Carolina Reports

<bold>1. Criminal Law § 59 (NCI4th) — challenge to jurisdiction — State's</bold> <bold>burden of proof</bold> When jurisdiction in a criminal prosecution is challenged, the State is required to proved beyond a reasonable doubt that the crime with which defendant is charged occurred in North Carolina. <bold>Am Jur 2d, Criminal Law §§ 343 et seq</bold>. <block_quote> <bold>Comment Note. — Necessity of proving venue or</bold> <bold>territorial jurisdiction</bold> <bold>of criminal offense beyond</bold> <bold>reasonable doubt. 67 ALR3d 988</bold>.</block_quote><page_number>Page 92</page_number> <bold>2. Criminal Law § 59 (NCI4th) — jurisdiction — murder in this state</bold> <bold>— sufficient evidence for jury</bold> The evidence in a second-degree murder prosecution made a <italic>prima facie</italic> showing of jurisdiction sufficient to carry the case to the jury and permit the jury to infer that the murder took place in this state, although the victim's body was found in a stream in South Carolina, where it tended to show that shortly after leaving work at 11:00 p.m., the victim went to her home in Mount Holly, two doors from where defendant lived, and changed from her work clothes into a dress; a few hours later, defendant was seen in the vicinity alone driving the victim's car; a breaking and entering occurred at the victim's home; acts of violence took place in the home as reflected by broken glass, dishes on the floor and the bedroom in disarray; a cement block and a rock used by the killer to sink the victim's body in the stream some fourteen miles away were taken from the victim's yard; on the morning following the killing, defendant left on his former sister-in-law's car a Bible in which he had written that he was going to kill himself; that afternoon defendant told a friend that he had done something for which the police were going to kill him; and when defendant was arrested, he told the police that the warrant would be worthless if he could prove he "killed that woman in South Carolina." <bold>Am Jur 2d, Criminal Law §§ 343 et seq.; Evidence §§ 1125 et seq</bold>. <bold>3. Criminal Law § 60 (NCI4th) — challenge to jurisdiction —</bold> <bold>instructions — State's failure of proof — not guilty verdict —</bold> <bold>special verdict</bold> When jurisdiction is challenged and the trial court makes a preliminary determination that sufficient evidence exists upon which the jury could conclude beyond a reasonable doubt that the murder occurred in North Carolina, the trial court must instruct the jury that unless the State has satisfied it beyond a reasonable doubt that the murder occurred in North Carolina, it should return a verdict of not guilty and a special verdict indicating a lack of jurisdiction. <bold>Am Jur 2d, Criminal Law §§ 343 et seq.; Trial §§ 1077-1079</bold>.<page_number>Page 93</page_number> <bold>4. Criminal Law § 60 (NCI4th) — challenge to jurisdiction —</bold> <bold>instructions — burden of proof — special verdict</bold> In this murder prosecution in which defendant challenged the facts of jurisdiction, the trial court erred by failing to instruct the jury that the State bore the burden of proving jurisdiction and that if the jury was unconvinced beyond a reasonable doubt that the murder, or the essential elements of murder, occurred in North Carolina, it should return a special verdict so indicating. <block_quote> <bold>Am Jur 2d, Criminal Law §§ 343 et seq.; Trial §§ 1077-1079,</bold> <bold>1835-1841</bold>.</block_quote> <bold>5. Burglary and Unlawful Breakings § 74 (NCI4th) — second-degree</bold> <bold>burglary — absence of evidence of nighttime</bold> The evidence was insufficient to support defendant's conviction of second-degree burglary where it failed to show that defendant broke into the victim's home during the nighttime. <bold>Am Jur 2d, Burglary §§ 22, 23, 51; Evidence §§ 1464-1469</bold>. <block_quote> <bold>Sufficiency of showing that burglary was committed at night.</bold> <bold>82 ALR2d 643</bold>.</block_quote> <bold>6. Rape and Allied Offenses § 122 (NCI4th) — attempted second-degree</bold> <bold>rape — insufficiency of evidence</bold> The evidence was insufficient to support defendant's conviction of attempted second-degree rape where the sole evidence regarding a sexual act was that defendant could not be ruled out as a partial contributor to a semen stain found on a murder victim's jeans, but there was no evidence that defendant had the intent to have vaginal intercourse with the victim by force and against her will. <bold>Am Jur 2d, Rape §§ 88 et seq</bold>. <block_quote> <bold>What constitutes penetration in prosecution for rape or statutory</bold> <bold>rape. 76 ALR3d 163</bold>.</block_quote> <block_quote> <bold>Sufficiency of allegations or evidence of serious bodily injury to</bold> <bold>support charge of aggravated degree of rape, sodomy, or other sexual</bold> <bold>abuse. 25 ALR4th 1213</bold>.</block_quote>

<bold>1. Evidence and witnesses § 675 (NCI4th) — untimely motion</bold><bold>to strike</bold> Defendant's motion to strike a witness's in-court identification of defendant was not timely, and defendant waived objection to the identification, where defendant made no objection to the prosecutor's question and no motion to strike at the time the witness identified defendant, and defendant's motion to strike was made only after the witness responded to two additional questions from the prosecutor, the State moved, again without objection or motion to strike, that the record reflect that the witness had identified defendant, and the prosecutor began to ask the witness a fourth question. <bold>Am Jur 2d, Trial § 395-401, 461-472</bold>. <bold>Necessity and sufficiency of renewal of objection to, or</bold><bold>offer of, evidence admitted or excluded conditionally. 88 ALR2d 12</bold>. <bold>2. Homicide § 232 (NCI4th) — first-degree murder —</bold><bold>premeditation and deliberation — sufficiency of evidence</bold> The State's evidence was sufficient to support defendant's conviction of first-degree murder on the theory of premeditation and deliberation where it tended to show that the victim was sitting in front of an apartment talking with two friends when he<page_number>Page 124</page_number> was shot by defendant six times; three eyewitnesses identified defendant as the killer; there was no evidence that the victim provoked defendant, but there was evidence of ill will between defendant and the victim resulting from a previous altercation between the victim and a third person; prior to the shooting defendant told the third person that "he wanted to do it" and the third person handed him a gun; after the killing, defendant bragged about how he "did it" and asked if the victim was dead; at least one shot to the victim's head was fired with the muzzle of the gun pressed against the victim's skin; and some wounds were inflicted upon the victim while the victim was lying helpless on the ground. <bold>am Jur 2d, Homicide §§ 425 et seq</bold>. <bold>3. Evidence and Witnesses § 90 (NCI4th) — exclusion of</bold><bold>testimony — prejudice outweighing probative value</bold>. Testimony by two defense witnesses, a police officer and a poolroom owner, was properly excluded from a murder trial on the ground that the probative value thereof was substantially outweighed by the danger of unfair prejudice where the testimony would have shown that the officer was called to investigate shots fired outside a poolroom, the murder victim attempted to hide behind a truck, a .380 semiautomatic weapon was found behind the truck, and the poolroom owner told the officer he did not want the victim on his premises, since the testimony did not show that the victim did the shooting or that anyone other than defendant had a motive to kill him, and the testimony was prejudicial to the State. N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 403. <bold>Am Jur 2d, Evidence §§ 301-312, 333 et seq</bold>. <bold>4. Evidence and Witnesses § 117 (NCI4th) — killer's</bold><bold>description as fitting another — guilt of third party not shown</bold><bold>— exclusion of testimony</bold> the trial court did not err by refusing to permit a witness to testify in a murder trial that an eyewitness's description of the assailant more accurately fit her son than her grandson, the defendant, where three eyewitnesses identified defendant as the man they saw shoot the victim; the witness was not present when the shooting occurred; and the excluded testimony did not directly point to the guilt of a third party. <bold>Am Jur 2d, Evidence §§ 560-564, 587</bold>.<page_number>Page 125</page_number> <bold>Admissibility and weight of extrajudicial or pretrial</bold><bold>identification where witness was unable or failed to make</bold><bold>in-court identification. 29 ALR4th 104</bold>.

<bold>1. Statutes § 24 (NCI4th) — Session Laws — control over General</bold> <bold>Statutes</bold> The statement of a legislative enactment contained in the Session Laws controls over the statement codified in the General Statutes. <bold>Am Jur 2d, Statutes §§ 142 et seq</bold>. <bold>2. Judgments § 651 (NCI4th) — treble damages award — postjudgment</bold> <bold>interest</bold> Since Section 2 of the 1985 amendment of N.C.G.S. § <cross_reference>24-5</cross_reference> by Chapter 214 of the 1985 Session Laws provides that the act "shall not affect the law as it existed before the enactment of Chapter 327 of the 1981 Session Laws," and § <cross_reference>24-5</cross_reference> as it existed prior to 1981 provided that "the amount of any judgment or decree, except the costs . . . shall bear interest till paid," North Carolina law provides for postjudgment interest on judgments for money damages generally, including a judgment for treble damages, until the judgment is paid. The decision of <italic>Love v. Keith</italic>, <cross_reference>95 N.C. App. 549</cross_reference> (1989), is disavowed to the extent that it precludes the recovery of postjudgment interest on the full amount of the judgment under the current version of N.C.G.S. § <cross_reference>24-5</cross_reference> and as § <cross_reference>24-5</cross_reference> existed prior to 1981. <bold>Am Jur 2d, Interest and Usury §§ 59, 60</bold>. <bold>3. Judgments § 651 (NCI4th) — failure to pay interest on treble</bold> <bold>damages — partial payment of judgment — judgment against surety</bold> Where the judgment provided that plaintiff shall recover trebled damages of "$747,048 . . . and interest as provided by law from the date of entry of this judgment," the clerk of court correctly designated defendant's payment of the trebled damages and interest only on the portion of the judgment designated by the jury as compensatory damages as a partial payment of the judgment, and the trial court erred by denying plaintiff's motion for judgment against the surety on defendant's supersedeas bond<page_number>Page 134</page_number> for the remaining amount owed on the judgment for interest on the treble damages portion thereof. <bold>Am Jur 2d, Interest and Usury §§ 59, 60</bold>. <bold>4. Unfair Competition § 53 (NCI4th) — unfair practice — prevailing</bold> <bold>party — attorney fees for motion to protect judgment and appeal</bold> Where the Supreme Court held that the Court of Appeals erred by affirming the trial court's denial of plaintiff's motion for postjudgment interest on the treble damages portion of its judgment for an unfair and deceptive practice, plaintiff is now the prevailing party, and the trial court has the discretion under N.C.G.S. § <cross_reference>75-16.1</cross_reference> to award plaintiff reasonable attorney fees with regard to pursuing its motion in the trial court and its appeal in the appellate courts. <bold>Am Jur 2d, Appellate Review § 912</bold>.

<bold>Workers' Compensation § 62 (NCI4th) — Woodson claim not maintainable</bold> <bold>— language disavowed</bold> The decision of the Court of Appeals that plaintiff may not maintain this <italic>Woodson</italic> action against the employer of her intestate is affirmed. However, language in the Court of Appeals decision suggesting that the Restatement (Second) of Torts § 8A illus. 1 illustrates the type of conduct required to satisfy the <italic>Woodson</italic> "substantial certainty" test is disavowed. <bold>Am Jur 2d, Workers' Compensation §§ <cross_reference>75-87</cross_reference></bold>. <block_quote> <bold>What conduct is willful, intentional, or deliberate within workmen's</bold> <bold>compensation act provision authorizing tort action for such conduct. 96</bold> <bold>ALR3d 1064</bold>.</block_quote><page_number>Page 183</page_number> <block_quote> <bold>Workers' compensation law as precluding employee's suit against</bold> <bold>employer for third person's criminal attack. 49 ALR4th 926</bold>.</block_quote>

<bold>1. Common Law § 1 (NCI4th) — common law of England — applicability</bold> The common law referred to in N.C.G.S. § <cross_reference>4-1</cross_reference> has been held to be the common law of England as of the date of the signing of the American Declaration of Independence, and the term "common law" has been stated to refer to the common law of England and not of any particular state. However, that statement is incomplete and may be misleading because, at least since 1715, the common law of England was applicable in North Carolina only to the extent it was deemed "compatible with our way of living." Further, the express wording of N.C.G.S. § <cross_reference>4-1</cross_reference> makes it clear that only those parts of the English common law which had been "in force and use" in North Carolina and which were not contrary to the freedom and independence of North Carolina are to be applied. Much of the common law that is in force by virtue of N.C.G.S. § <cross_reference>4-1</cross_reference> may be modified or repealed by the General Assembly, except that any parts of the common law which are incorporated in our Constitution may be modified only by proper constitutional amendment. <bold>Am Jur 2d, Common Law §§ 1, 2, 4, 13</bold>. <bold>2. Waters and Watercourses § 55 (NCI4th) — navigability — lunar tides</bold> <bold>test</bold> The lunar tides test for determining navigability was never part of the English common law applied in North Carolina before or after the Revolution, is therefore not a part of the common law of North Carolina, and is inapplicable to the conditions of the waters within the state.<page_number>Page 288</page_number> <bold>Am Jur 2d, Waters §§ <cross_reference>59-73</cross_reference></bold>. <bold>3. Waters and Watercourses § 55 (NCI4th) — navigability — relationship</bold> <bold>to public trust doctrine — test</bold> The controlling law of navigability as it relates to the public trust doctrine in North Carolina is that if a body of water in its natural condition can be navigated by watercraft, it is navigable in fact, and therefore, navigable in law, even if it has not been used for such purpose. Lands lying beneath such waters that are navigable in law are the subject of the public trust doctrine. <bold>Am Jur 2d, Waters §§ <cross_reference>59-73</cross_reference></bold>. <bold>4. Waters and Watercourses § 56 (NCI4th) — lands beneath navigable</bold> <bold>waters — conveyance by State — public trust doctrine</bold> No constitutional provision throughout the history of North Carolina has expressly or impliedly precluded the General Assembly from conveying lands beneath navigable waters by special grant in fee simple and free of any rights arising from the public trust doctrine, which is a common law doctrine and cannot, in the absence of a constitutional basis for the doctrine, be used to invalidate acts of the legislature which are not proscribed by our Constitution. The public trust doctrine in North Carolina thus operates as a rule of construction creating a presumption that the General Assembly did not intend to convey lands in a manner that would impair public trust rights; however, this presumption is overcome by a special grant from the General Assembly expressly conveying lands underlying navigable waters in fee simple and without reservation of any public trust rights. <bold>Am Jur 2d, Waters §§ <cross_reference>74-81</cross_reference></bold>. <bold>5. Waters and Watercourses § 67 (NCI4th) — marshlands and swamplands —</bold> <bold>conveyance by State Board of Education — public trust rights</bold> Either the Board of the Literacy Fund or the State Board of Education as its successor in interest was at all times vested with title to the vacant marshlands and swamplands in the State after an 1825 act, and title to those lands continued to be held by the SBE until our statutes regarding the control and disposition of all State lands were amended in 1959. However, in no statute enacted by the General Assembly from 1825 to the present has that body ever expressly stated that it was granting the Literacy<page_number>Page 289</page_number> Fund or the SBE fee simple title to the marshlands free of all public trust rights whatsoever, and the presumption arising under the public trust doctrine has not been rebutted and prevails. The General Assembly did not convey the marshlands covered by navigable waters to the SBE free of any applicable public trust rights and therefore the SBE could not convey such lands to the plaintiffs' predecessor in title free of such public trust rights. <bold>Am Jur 2d, Waters §§ 378 et seq</bold>. <bold>6. Waters and Watercourses § 67 (NCI4th) — marshlands — public trust</bold> <bold>rights — application of N.C.G.S. § <cross_reference>146-20.1</cross_reference></bold> Applying N.C.G.S. § <cross_reference>146-20.1</cross_reference> in this case to impose public trust rights on any parts of marshlands not covered by navigable waters and which are therefore free of public trust rights would be contrary to N.C.G.S. § <cross_reference>146-83</cross_reference>, which provides that no provision of chapter 146 shall be applied or construed to the detriment of vested rights or interests acquired prior to June 2, 1959. <bold>Am Jur 2d, Waters §§ 378 et seq</bold>. <bold>7. Trial § 146 (NCI4th) — title to marshlands — stipulation — contrary</bold> <bold>allegation added to complaint — no error</bold> The trial court did not err in an action involving the title to marshlands by expanding one complaint to add an allegation inconsistent with a stipulated fact. Even though stipulations are encouraged by the courts, they will be restricted to the intent manifested by the parties in the agreement. The trial court here properly concluded that the plaintiff did not intend to admit anything other than what the deed said and did not intend to waive any rights concerning her claim to this marshland. <bold>Am Jur 2d, Stipulations §§ 1, 7, 8, 12</bold>. <bold>8. Waters and Watercourses § 55 (NCI4th) — marshlands — conveyed by</bold> <bold>State — public trust — navigability</bold> An action seeking a determination of the quality of plaintiffs' titles to marshland originally obtained from the State was remanded where the trial court correctly rejected the lunar tides test and accepted the navigability in fact test in determining whether the waters in question in this case are navigable in law, but may have decided the issue of navigability in fact solely on the basis of whether the waters at issue were actually being used for or had historically been used for navigation, rather than on<page_number>Page 290</page_number> the proper basis of whether the waters were such that navigation by pleasure or commercial watercraft was possible even if no watercraft had ever actually navigated on them. Although evidence of present or past actual navigation of the waters in question is evidence tending to support a finding that the waters are navigable in fact, such evidence will not be needed in every case in order to establish navigability in fact. Additionally, certain findings and conclusions of the trial court appear to be unclear, including, for example, the material facts found from stipulations and set forth in the judgment in respect to the properties conveyed. <bold>Am Jur 2d, Waters §§ <cross_reference>59-73</cross_reference></bold>.

<bold>1. Criminal Law § 1337 (NCI4th) — capital sentencing — prior</bold> <bold>violent felony — instruction — personal violence by defendant —</bold> <bold>supporting evidence — absence of prejudice</bold> The trial court's isolated reference to defendant's personal threat or use of violence in its instruction on the prior conviction of a violent felony aggravating circumstance did not require the jury to find that defendant personally threatened or used violence during a prior robbery in order to find the existence of this circumstance where language in other portions of the instruction and on the issues and recommendation form properly referred to a "felony involving the use or threat of violence to the person." However, evidence that defendant had a gun and inflicted physical violence on the robbery victim was sufficient to support this aggravator even under an instruction requiring personal violence or threats by defendant, and the instruction, even if incorrect, had no probable impact on the jury's sentence recommendation. N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e)(3). <bold>Am Jur 2d, Criminal Law §§ 598, 599</bold>. <bold>2. Criminal Law § 680 (NCI4th) — capital sentencing — mitigating</bold> <bold>circumstance — peremptory instruction</bold> The trial court did not err by giving the pattern peremptory instruction that the jury should find a mitigating circumstance "if one or more of you finds the facts to be as all the evidence tends to show" rather than giving defendant's proposed instruction that "all of the evidence shows that this is true." The court's instruction properly left the credibility determination to the jury and permitted individual jurors to disbelieve the evidence if they so chose. <bold>Am Jur 2d, Trial § 1441</bold>.<page_number>Page 313</page_number> <bold>3. Criminal Law § 1341 (NCI4th) — capital sentencing — pecuniary</bold> <bold>gain aggravating circumstance — sufficiency of evidence</bold> The State's evidence was sufficient to support the trial court's submission of the pecuniary gain aggravating circumstance in a capital sentencing proceeding where it tended to show that, although defendant said he initially asked the victim to "lend him money," defendant then stabbed the victim when she refused to give him money, and after killing her, he stepped over her dead body, took fifteen dollars the victim had placed beside a telephone, and went to buy cocaine. N.C.G.S. § <cross_reference>15A-2000</cross_reference> (e)(6). <bold>Am Jur 2d, Criminal Law §§ 598, 599</bold>. <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty, to establish</bold> <bold>statutory aggravating circumstance that murder was committed for</bold> <bold>pecuniary gain, as consideration or in expectation of receiving</bold> <bold>something of monetary value, and the like — post-</bold><bold><italic>Gregg cases</italic></bold>. <bold>66 ALR4th 417</bold>.</block_quote> <bold>4. Criminal Law § 458 (NCI4th) — capital sentencing — question by</bold> <bold>prosecutor — no insinuation of parole possibility</bold> The prosecutor's question in a capital sentencing proceeding during cross-examination of defendant's counselor while he was in a New York prison asking if she had an opinion as to whether defendant would be able, "if given some opportunity at some point, to abide by the law" did not improperly insinuate that defendant might later be released from prison on parole where the question was directed toward defendant's ability to adapt to prison life if given a life sentence. Further, the court's sustaining of defendant's objection to the question advised jurors that they should not consider the question. <bold>Am Jur 2d, Trial §§ 575, 576</bold>. <block_quote> <bold>Prejudicial effect of statement of prosecutor as to possibility of</bold> <bold>pardon or parole. 16 ALR3d 1137</bold>.</block_quote> <block_quote> <bold>Prejudicial effect of statement by prosecutor that verdict</bold>, <bold>recommendation of punishment, or other finding by jury is subject to</bold> <bold>review or correction by other authorities. 10 ALR5th 700</bold>.</block_quote><page_number>Page 314</page_number> <bold>5. Criminal Law § 680 (NCI4th) — capital sentencing — mitigating</bold> <bold>circumstance — uncontradicted evidence — peremptory instruction</bold> In a capital sentencing proceeding, when submitting to the jury uncontradicted evidence supporting a mitigating circumstance, the appropriate device is a peremptory instruction rather than a directed verdict. Therefore, the trial court did not err in giving a peremptory instruction on two statutory mitigating circumstances rather than defendant's proposed "directed verdict peremptory instruction." <bold>Am Jur 2d, Trial § 1441</bold>. <bold>6. Criminal Law § 680 (NCI4th) — capital sentencing —</bold> <bold>nonstatutory mitigating circumstances — peremptory instruction —</bold> <bold>mitigating value — insufficient evidence</bold> The trial court did not err by refusing to give defendant's proposed peremptory instruction on the nonstatutory mitigating circumstances that he responds well to a structured environment such as prison and relates well to jail and prison staff where the proposed instruction required jurors to assign mitigating value to nonstatutory mitigating circumstances. Further, the evidence to support these mitigating circumstances was not uncontradicted and thus would not have entitled defendant to a peremptory instruction where there was evidence that, while defendant was in prison in New York, it was not until defendant realized that good behavior and participation in prison programs would expedite his release that he began conforming to the requirements of the system, and a county jailer testified that while defendant was awaiting trial on the current charges, he was assigned to move defendant to another cell, defendant refused to comply and told the jailer he would need more deputies, and defendant acquiesced only after the jailer called for help. <bold>Am Jur 2d, Trial § 1441</bold>. <bold>7. Criminal Law § 1373 (NCI4th) — death sentence not</bold> <bold>disproportionate</bold> A sentence of death imposed upon defendant for first-degree murder was not excessive or disproportionate to the penalty imposed in other cases, considering both the crime and the defendant, where the jury convicted defendant under both the felony murder rule and the theory of malice, premeditation, and<page_number>Page 315</page_number> deliberation; the victim was killed in her own living room in the middle of the night; defendant chose to kill a person who had treated him with kindness and compassion, for whom he had done yard work in the past, and who had been his neighbor for quite some time; defendant stabbed the victim over thirteen times with an eight-inch butcher knife; one of the stab wounds penetrated to a depth of six inches, and at least three others were four inches deep or more; the victim was a seventy-one-year-old woman who suffered from cancer and arthritis, and defendant was a healthy twenty-four-year-old man; and defendant killed the victim for fifteen dollars to enable him to buy crack cocaine which he smoked while she lay dead on her living room floor. <bold>Am Jur 2d, Criminal Law § 628</bold>.

<bold>Searches and Seizures § 14 (NCI4th) — cocaine — search of garbage —</bold> <bold>basis for search of home</bold> There was no error in a prosecution for trafficking in cocaine, maintaining a building for the use and sale of controlled substances, and possession of drug paraphernalia where a detective advised a supervisor at the Winston-Salem Sanitation Department that the police department wanted a sanitation worker to collect the trash at defendant's residence and turn it over to the police; the person who normally collected defendant's garbage agreed; defendant's garbage was collected from the back of his residence and taken to the truck; this collection was routine in every way except that defendant's garbage was deposited into a separate container and turned over to the police; a search of the garbage uncovered cocaine residue; the detective applied for a search warrant for defendant's residence, citing the cocaine residue and reliable information from four informants; a warrant was issued; and more than a pound of cocaine was found in defendant's home. While defendant may have retained some expectation of privacy in garbage placed in his backyard out of the public's view so as to bar search and seizure by the police entering the property, a different result is dictated when the garbage is collected in its routine manner. Even assuming that the search violated the Fourth Amendment, the information supplied by the informants<page_number>Page 383</page_number> provided a substantial basis for probable cause for the search warrant. <bold>Am Jur 2d, Searches and Seizures §§ 36, 37</bold>.

<bold>Automobiles and Other Vehicles § 460 (NCI4th) — automobile accident —</bold> <bold>driver with learner's permit — liability of parent</bold> The trial court erred by granting a directed verdict for defendant in an action arising from an automobile collision where plaintiff was the front seat passenger in a car driven by defendant, her son, who had a learner's permit and who was operating the car under her supervision; defendant had driven some four miles before the accident without incident; plaintiff had not been required to correct his driving over those four miles; defendant approached a left-hand curve on the rural, unpaved road and met a car travelling towards him at a fast rate of speed; and defendant, without warning, suddenly drove the car off the right side of the road, jumped a ditch, sped up and traveled approximately two hundred feet before the car struck a tree. Although N.C.G.S. § <cross_reference>20-11</cross_reference>(b) establishes a presumption of the right to control on the part of the supervising adult, this presumption does not translate into an irrebuttable presumption of control so as to impute negligence or establish contributory negligence as a matter of law without regard for exigent circumstances or general negligence principles and it cannot be said upon the facts here that plaintiff's contributory negligence was so clearly established that no other reasonable inference can be drawn from the evidence such that defendant was entitled to a directed verdict. <bold>Am Jur 2d, Automobiles and Highway Traffic §§ 568, 608, 635</bold>. <block_quote> <bold>Automobile operator's inexperience or lack of skill as affecting his</bold> <bold>liability to passenger. 43 ALR2d 1155</bold>.</block_quote> <block_quote> <bold>Liability, for personal injury or property damage, for negligence in</bold> <bold>teaching or supervision of learning driver. 5 ALR3d 271</bold>.</block_quote> <block_quote> <bold>Student-driver's negligence as imputable to teacher-passenger. 90</bold> <bold>ALR3d 1329</bold>.</block_quote><page_number>Page 390</page_number>

<bold>1. Criminal Law § 289 (NCI4th) — noncapital first-degree murder —</bold> <bold>continuance denied — no supporting affidavit</bold> There was no abuse of discretion in a noncapital first-degree murder trial where defense counsel discovered the day before trial that defendant's mother and her friends had allegedly abused defendant during his childhood; moved to continue; and in support of the motion presented no affidavits but reported a telephone conversation with a psychologist in which the psychologist stated that defendant's abusive childhood might have affected his mental state at the time of the killing. Defendant's oral motion to continue, made on the date set for trial and not supported by an affidavit, did not set forth any form of detailed proof indicating sufficient grounds for further delay. <bold>Am Jur 2d, Continuance §§ 66, 118</bold>. <bold>2. Criminal Law § 270 (NCI4th) — noncapital first-degree murder —</bold> <bold>psychiatric evaluation denied — no error</bold> The trial court did not err or abuse its discretion in a noncapital first-degree murder prosecution by denying defendant's request for a continuance so that another psychiatric evaluation could be performed taking into account recent allegations of childhood abuse. A psychiatric evaluation had found defendant competent to stand trial, defense counsel did not give notice that defendant's mental state at the time of the offense might be a factor in his defense until the first day of trial, and defendant neither requested a court appointed psychiatrist nor indicated the likelihood of an insanity defense. There is no indication in the record that defendant's behavior was bizarre or that the psychiatrist who evaluated defendant recommended either commitment or medication. Defendant has not brought forth any evidence that a psychiatric evaluation would have disclosed a mental condition likely to be a significant factor at trial. <bold>Am Jur 2d, Continuance §§ 61-63, 65, 73, 74</bold>.<page_number>Page 524</page_number> <bold>3. Evidence and Witnesses § 2555 (NCI4th) — noncapital first-degree</bold> <bold>murder — witness's accent — not disqualified</bold> There was no plain error in a noncapital first-degree murder prosecution where the judge, court reporter, and defense counsel found it difficult to understand a witness due to her accent and the judge allowed the prosecution to ask leading questions to alleviate the problem. This testimony added very little to the State's evidence and did not affect the jury's verdict. <bold>Am Jur 2d, Witnesses §§ 755, 756</bold>. <bold>4. Evidence and Witnesses § 2808 (NCI4th) — leading questions — facts</bold> <bold>previously heard — no plain error</bold> There was no plain error or abuse of discretion in allowing leading questions in a first-degree murder prosecution where defendant contended that an officer was asked leading questions which assumed facts not in evidence and which permitted him to testify about facts of which he had no personal knowledge, but defendant did not object to the questions or answers and a proper foundation was laid for the introduction of the facts incorporated in the questions. <bold>Am Jur 2d, Appellate Review §§ 614, 695, 774; Witnesses § 752</bold>. <bold>5. Evidence and Witnesses § 1450 (NCI4th) — noncapital first-degree</bold> <bold>murder — victim's clothing — chain of custody</bold> The trial court did not abuse its discretion in a first-degree murder prosecution by admitting the victim's shirt into evidence where defendant contended that the chain of custody for the shirt was broken because a former officer was not called to testify. All of the available evidence at trial indicates that the victim was wearing the shirt when defendant shot him and the State must establish a detailed chain of custody only when the evidence offered is not readily identifiable or is susceptible to alteration and there is reason to believe that it may have been altered. <bold>Am Jur 2d, Evidence §§ 946, 947</bold>. <bold>6. Evidence and Witnesses § 2124 (NCI4th) — noncapital first-degree</bold> <bold>murder — officer's opinion — markings on victim's clothing —</bold> <bold>gunshot stippling</bold> There was no error in a first-degree murder prosecution where an officer was allowed to identify markings on the victim's<page_number>Page 525</page_number> clothing as gunshot stippling based on fifteen years of experience in examining crime scenes. The testimony corroborated testimony about stippling on the victim's shoulder and contradicted defendant's testimony about how far he was standing from the victim when he fired the gun. <bold>Am Jur 2d, Expert and Opinion Evidence §§ 300, 303</bold>. <block_quote> <bold>Admissibility, in criminal case, of results of residue detection test</bold> <bold>to determine whether accused or victim handled or fired gun. 1 ALR4th</bold> <bold>1072</bold>.</block_quote> <bold>7. Evidence and Witnesses § 1274 (NCI4th) — confession — defendant's</bold> <bold>mental capabilities — officer's opinion</bold> There was no error in a first-degree murder prosecution where an officer was allowed to give his opinion regarding defendant's mental capabilities at the time he confessed but defendant was not allowed to introduce evidence regarding his mental capabilities. The State has the burden of establishing that a confessing defendant possesses the proper mental capacity to waive his rights and the testimony meets the standards of N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 701 in that the opinion was rationally based on the officer's perception of defendant at the time of the confession and it was necessary that the officer give his opinion to help determine whether defendant voluntarily gave the statement, a crucial fact in issue. Furthermore, although defendant contends that the jury could have improperly inferred from this testimony that defendant was also mentally capable when he shot the victim, defendant's capacity at the time of the shooting was never in issue. <block_quote> <bold>Am Jur 2d, Criminal Law § 797; Evidence § 744; Expert and Opinion</bold> <bold>Evidence §§ 164 et seq</bold>.</block_quote> <block_quote> <bold>Mental subnormality of accused as affecting voluntariness or</bold> <bold>admissibility of confession. 8 ALR4th 16</bold>.</block_quote> <block_quote> <bold>Sufficiency of showing that voluntariness of confession or admission</bold> <bold>was affected by alcohol or other drugs. 25 ALR4th 419</bold>.</block_quote> <block_quote> <bold>Validity or admissibility, under Federal Constitution, of accused's</bold> <bold>pretrial confession as affected by accused's mental illness or impairment</bold> <bold>at time of confession — Supreme Court cases. <cross_reference>93 L.Ed.2d 1078</cross_reference></bold>.</block_quote><page_number>Page 526</page_number> <bold>8. Evidence and Witnesses § 2908 (NCI4th) — first-degree murder —</bold> <bold>defendant's confession to third party — hearsay — admission not</bold> <bold>prejudicial</bold> There was no prejudicial error in a first-degree murder prosecution where an officer testified on redirect examination that defendant had told a third party that he had murdered the victim. Although the State argued that the defendant had opened the door on cross-examination by eliciting testimony that there were no eyewitnesses who could identify defendant as the killer, there is no particular fact or transaction connecting the statement of the third party, Bridget Merritt, with the testimony on cross-examination. However, the jury would have reached the same verdict without the admission of the hearsay statement. <bold>Am Jur 2d, Appellate Review § 758; Witnesses §§ 740, 741</bold>. <bold>9. Evidence and Witnesses § 202 (NCI4th) — first-degree murder —</bold> <bold>defendant's personal and educational background — properly excluded</bold> There was no error in a first-degree murder prosecution where the trial court did not allow defendant to present evidence that he was incapable of forming the intent required for first-degree murder and discharging a firearm into an occupied vehicle because his mother abused him and he was a slow learner at school. Defendant failed to make any connection at trial between the alleged abuse and below-average intelligence and the crimes committed; on the contrary, the record is replete with evidence tending to rebut defendant's contentions. <bold>Am Jur 2d, Evidence §§ 319, 558</bold>. <bold>10. Criminal Law § 610 (NCI4th) — first-degree murder — motion to dismiss</bold> <bold>— erroneously admitted evidence</bold> The trial court did not err in a first-degree murder prosecution by denying defendant's motions to dismiss for insufficient evidence where defendant argued that the evidence would have been insufficient but for evidentiary errors. The trial court should consider all evidence favorable to the State which is actually admitted when ruling on a motion to dismiss for insufficient evidence; the fact that some of the evidence was erroneously admitted by the trial court is not a sufficient basis for granting the motion.<page_number>Page 527</page_number> <bold>Am Jur 2d, Trial §§ 842 et seq</bold>. <block_quote> <bold>Consideration, in determining facts, of inadmissible hearsay evidence</bold> <bold>introduced without objection. 79 ALR2d 890</bold>.</block_quote> <bold>11. Criminal Law § 691 (NCI4th) — first-degree murder — instructions —</bold> <bold>objections — no plain error</bold> There was no plain error in a first-degree murder prosecution where defendant contended that the trial court erred in its instructions to the jury and in its failure to give defense counsel the opportunity to object to the instructions out of the hearing of the jury. The trial judge asked the attorneys to approach the bench after completing the substantive charge; after a brief conference announced that both sides were satisfied; gave the final instructions and asked whether the attorneys were satisfied; and both indicated that they were. There is no statute or rule which obligates the trial judge to advise defense counsel to approach the bench for the purpose of making an objection out of the presence of the jury. Furthermore, the State presented overwhelming evidence, including defendant's own signed confession, showing defendant's guilt and the errors cited by defendant did not alter the essential meaning or intent of the pattern jury instructions. <bold>Am Jur 2d, Trial §§ 1079, 1459-1473</bold>. <block_quote> <bold>Construction and effect of provision of Rule 51 of the Federal Rules</bold> <bold>of Civil Procedure, and similar state rules, that counsel be given</bold> <bold>opportunity to make objections to instructions out of the hearing of</bold> <bold>jury. 1 ALR Fed. 310</bold>.</block_quote> <block_quote> <bold>When does trial court's noncompliance with requirement of Rule 30</bold>, <bold>Federal Rules of Criminal Procedure, that opportunity shall be given to</bold> <bold>make objection to instructions upon request, out of presence of jury</bold>, <bold>constitute prejudicial error. 55 ALR Fed. 726</bold>.</block_quote>

<bold>1. Husband and Wife § 9 (NCI4th) — necessaries doctrine — medical</bold> <bold>expenses — showing by health-care provider</bold> In order to establish a <italic>prima facie</italic> case against one spouse for the value of necessary medical services provided to the other spouse, the health-care provider must show that (1) medical services were provided to the receiving spouse, (2) the medical services were necessary for the health and well-being of the receiving spouse, (3) the person against whom the action is brought was married to the receiving spouse at the time the medical services were provided, and (4) payment for the necessaries has not been made. <bold>Am Jur 2d, Husband and Wife §§ 183-190, 202</bold>. <bold>Wife's liability for necessaries furnished husband. 11 ALR4th 1160</bold>. <block_quote> <bold>Necessity, in action against husband for necessaries furnished wife</bold>, <bold>of proving husband's failure to provide necessities. 19 ALR4th 432</bold>.</block_quote> <block_quote> <bold>Modern status of rule that husband is primarily or solely liable for</bold> <bold>necessaries furnished wife. 20 ALR4th 196</bold>.</block_quote> <bold>2. Husband and Wife § 9 (NCI4th) — necessaries doctrine —</bold> <bold>separation exception — necessity for modification</bold> Because the historical purposes underlying the separation exception to the necessaries doctrine are incompatible with current mores and laws governing modern marital relationships in North Carolina, the separation exception previously applied in the courts of this State is "obsolete" within the meaning of N.C.G.S. § <cross_reference>4-1</cross_reference>, has no place in the common law, and must be modified. <bold>Am Jur 2d, Husband and Wife §§ 191-199</bold>. <block_quote> <bold>Husband's liability to third person for necessaries furnished to wife</bold> <bold>separated from him. 60 ALR2d 7</bold>.</block_quote> <bold>Wife's liability for necessaries furnished husband. 11 ALR4th 1160</bold>.<page_number>Page 617</page_number> <bold>3. Husband and Wife § 9 (NCI4th) — necessaries doctrine —</bold> <bold>separation exception — modified rule</bold> The spouse seeking to benefit from the separation exception to the necessaries doctrine must show that the provider of necessary services had <italic>actual notice</italic> of the separation at the time the services were rendered, and "fault" for the separation is not a factor to be considered in applying the separation exception. <bold>Am Jur 2d, Husband and Wife §§ 191-199</bold>. <block_quote> <bold>Husband's liability to third person for necessaries furnished to wife</bold> <bold>separated from him. 60 ALR2d 7</bold>.</block_quote> <bold>Wife's liability for necessaries furnished husband. 11 ALR4th 1160</bold>. <bold>4. Husband and Wife § 9 (NCI4th) — necessaries doctrine — husband</bold> <bold>and wife separated — absence of notice to hospital — wife's</bold> <bold>liability for husband's medical expenses</bold> Defendant wife was liable under the necessaries doctrine for medical services rendered to her husband by plaintiff hospital where defendant and her husband were married but living separate and apart when the services were provided; defendant carried her husband to the hospital and admitted him; defendant did not put the hospital on notice of their separation at the time she admitted him to the hospital; it was not until the hospital had been frustrated in its efforts to collect the medical bills from the husband's insurance and from his estate that defendant first informed the hospital that she and her husband had been separated at the time medical care was provided; and the hospital did not have actual notice of defendant's separation from her husband at the time it rendered medical services to him. <bold>Am Jur 2d, Husband and Wife §§ 191-199</bold>. <block_quote> <bold>Husband's liability to third person for necessaries furnished to wife</bold> <bold>separated from him. 60 ALR2d 7</bold>.</block_quote> <bold>Wife's liability for necessaries furnished husband. 11 ALR4th 1160</bold>.

<bold>1. Criminal Law § 793 (NCI4th); Homicide § 583 (NCI4th) — acting in</bold> <bold>concert — instructions — specific intent of defendant</bold> The trial court's instructions that the State was required to prove as an element of each of the crimes of first-degree premeditated and deliberated murder, armed robbery, and first-degree kidnapping that "defendant, or someone with whom he was acting in concert" had the specific intent to commit the crime erroneously allowed the jury to convict defendant of those crimes on the theory of acting in concert without requiring the State to establish that defendant had the specific intent to commit those crimes, and defendant is entitled to a new trial on each of those charges. Defendant is also entitled to a new trial on a felony murder charge because the predicate felony which supported that theory was obtained without the State being required to establish defendant's specific intent. <bold>Am Jur 2d, Homicide §§ 498-501, 507; Trial §§ 1251, 1255, 1256</bold>. <block_quote> <bold>Modern status of the rules requiring malice "aforethought,"</bold> <bold>"deliberation," or "premeditation," as elements of murder in the first</bold> <bold>degree. 18 ALR4th 961</bold>.</block_quote> <bold>2. Criminal Law § 461 (NCI4th) — prosecutor's closing argument —</bold> <bold>improper comment on inadmissible evidence</bold> A comment by the prosecutor during her closing argument that it was "interesting how the State cannot get in what Morris told Lawrence" was improper where the trial court had ruled that the statement by Morris was inadmissible. <bold>Am Jur 2d, Trial §§ 615, 616</bold>. <block_quote> <bold>Supreme Court's views as to what courtroom statements made by</bold> <bold>prosecuting attorney during criminal trial violate due process or</bold> <bold>constitute denial of fair trial. <cross_reference>40 L.Ed.2d 886</cross_reference></bold>.</block_quote><page_number>Page 624</page_number>

<bold>1. Homicide § 253 (NCI4th) — first-degree murder — premeditation and</bold> <bold>deliberation — sufficiency of evidence</bold> There was sufficient evidence of premeditation and deliberation in a noncapital first-degree murder prosecution where the State's evidence tended to show that at some point during an argument, the victim told defendant that she was going to call the police; defendant thereafter shot the victim, inflicting a fatal tight contact gunshot wound with his rifle; defendant had to move from the hallway into the living room to retrieve his gun from its usual location behind a bar and then return to the hallway to shoot the victim; the bar was seven or eight arm lengths from the location where defendant shot the victim; and, after the murder, defendant concealed the victim's body in sheets, carried it and the rifle to the victim's car, discarded the car and body in a ditch, and threw the rifle into a river. <bold>Am Jur 2d, Homicide §§ 152, 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 629</page_number> <block_quote> <bold>Modern status of the rules requiring malice "aforethought,"</bold> <bold>"deliberation," or "premeditation," as elements of murder in the first</bold> <bold>degree. 18 ALR4th 961</bold>.</block_quote> <bold>2. Homicide § 482 (NCI4th) — first-degree murder — premeditation and</bold> <bold>deliberation — pattern jury instructions</bold> The trial court did not err in a first-degree murder prosecution by giving the pattern jury instruction on premeditation and deliberation rather than the instructions requested by defendant, which were drawn from the pre-pattern <italic>State v. Buchanan</italic>, <cross_reference>287 N.C. 408</cross_reference>. Language in <italic>Buchanan</italic> defining premeditation and deliberation was cast in doubt in <italic>State v. Leach</italic>, <cross_reference>340 N.C. 236</cross_reference>. <bold>Am Jur 2d, Homicide § 501</bold>. <block_quote> <bold>Modern status of the rules requiring malice "aforethought,"</bold> <bold>"deliberation," or "premeditation," as elements of murder in the first</bold> <bold>degree. 18 ALR4th 961</bold>.</block_quote>