Volume 343 — North Carolina Reports

<bold>Penalties, Fines, and Forfeitures § 8 (NCI4th) — violations of</bold> <bold>environmental laws — payment to DEHNR — penalty — entitlement</bold> <bold>of local school district</bold> <block_quote> Monies paid to the Department of Environment, Health and Natural Resources pursuant to a settlement agreement for violations of air pollution control standards constituted a penalty under Article IX, Section 7 of the North Carolina Constitution and should be remitted to the local school district. It was not determinative that the monies were collected pursuant to a settlement agreement or that the agreement stated that payment was not to be construed as a fine, penalty, or forfeiture.</block_quote> <block_quote> <bold>Am Jur 2d, Forfeitures and Penalties § 67; Pollution</bold> <bold>§§ 81, 558</bold>.</block_quote> <bold>Recovery of cumulative statutory penalties. 71 ALR2d 986</bold>.<page_number>Page 88</page_number>

<bold>1. Homicide § 583 (NCI4th) — involuntary manslaughter — acting in</bold> <bold>concert — victim outside car reaching in — holding</bold> <bold>onto victim and driving away</bold> <block_quote> The trial court did not err by charging the jury on acting in concert in a second-degree murder trial which resulted in an involuntary manslaughter conviction where defendant went with another man to buy crack cocaine with the other man driving and defendant in the passenger seat; a witness testified that the automobile pulled to the curb; the victim went to the vehicle on the passenger side and leaned in; defendant held the victim by the hand and the automobile picked up speed; the victim ran or was dragged until she fell and the automobile ran over her; the victim died as a result of being hit by the automobile; and the Court of Appeals held that it was error for the court to charge the jury on acting in concert because there was no evidence the two men were acting together pursuant to a common plan which caused the victim's death. Involuntary manslaughter can be based on culpable negligence, which in this case was allowing the automobile to move while the victim was being held, there was evidence from which the jury could find that defendant held the victim while the driver drove away, and there was evidence in the circumstances in which the incident occurred that the two men were engaged in a common plan.</block_quote> <bold>Am Jur 2d, Homicide §§ 29, 30</bold>. <block_quote> <bold>Who other than actor is liable for manslaughter.</bold> <bold>95 ALR2d 175</bold>.</block_quote> <bold>2. Appeal and Error § 22 (NCI4th) — appeal by State to</bold> <bold>Supreme Court on dissent — limits of argument</bold> <block_quote> In an appeal by the State to the Supreme Court based on a dissent in the Court of Appeals which concluded that the defendant acted with another person to purchase crack cocaine and that this was evidence of acting in concert which caused the resulting death of the victim, who was leaning into the car as it drove away, the State is not limited to arguing the reasons in the dissent as to why there was evidence to support the charge. The dissent was<page_number>Page 108</page_number> based on the premise that there was evidence to support a charge of acting in concert and the State can argue in the Supreme Court any evidence that supports this premise.</block_quote> <bold>Am Jur 2d, Appellate Review § 697</bold>.

<bold>Evidence and Witnesses § 1920 (NCI4th); Illegitimate</bold> <bold>Children § 7 (NCI4th) — blood grouping test — alleged natural</bold> <bold>father — standing to compel</bold> <block_quote> The language of N.C.G.S. § <cross_reference>8-50.1</cross_reference> in effect when this action originated does not confer standing upon an alleged natural father to compel a presumed father to submit to a blood test to determine the paternity of a child born during the marriage of the presumed father and the mother.</block_quote> <bold>Am Jur 2d, Illegitimate Children § 27</bold>. <block_quote> <bold>Admissibility and weight of blood-grouping tests in disputed</bold> <bold>paternity cases. 43 ALR4th 579</bold>.</block_quote> <block_quote> <bold>Parental rights of man who is not biological or adoptive</bold> <bold>father of child but was husband or cohabitant of mother</bold> <bold>when child was conceived or born. 84 ALR4th 655</bold>.</block_quote>

<bold>1. Homicide § 266 (NCI4th) — armed robbery — felony murder —</bold> <bold>sufficiency of evidence</bold> <block_quote> There was sufficient evidence of armed robbery to support defendant's conviction of felony murder of Michael Turner where the State presented evidence tending to show that defendant and his companions planned to sell fake cocaine to the victim and his brother at a used car lot; the victim had a bag of money in his possession when he exited a van at the car lot; this bag was not found when the victim's body was discovered at the door of the car lot office a short time later; defendant was last seen standing next to the victim just before a gunshot was heard; the victim died from a gunshot wound to the head; and the gun was placed firmly against the victim's skull when it was fired.</block_quote> <bold>Am Jur 2d, Homicide § 442</bold>. <bold>2. Homicide § 226 (NCI4th) — first-degree murder — premeditation</bold> <bold>and deliberation — defendant as shooter — sufficiency of evidence</bold> <block_quote> The jury could infer from the evidence that defendant shot the victim so as to support his conviction of first-degree murder under the theory of premeditation and deliberation where the State's evidence tended to show that defendant and his companions planned to sell fake cocaine to the victim and his brother at a used car lot; defendant was seen standing next to the victim seconds before a shot was heard; the victim died from a gunshot wound made with the gun placed firmly against his head; when the shot was fired one of defendant's companions was inside the car lot office with the victim's brother and defendant's other companion was pursuing a friend of the victim who fled the scene; the victim was found with his back against the open screen door of the office, and the victim's brother was shot in the office; and the victim and his brother were not shot with the same gun.</block_quote> <bold>Am Jur 2d, Homicide § 286</bold>. <block_quote> <bold>Admissibility of testimony that bullet could or might have come from</bold> <bold>particular gun. 31 ALR4th 486</bold>.</block_quote><page_number>Page 165</page_number> <bold>3. Homicide § 374 (NCI4th) — first-degree murder — acting in</bold> <bold>concert — constructive presence — sufficiency of evidence</bold> <block_quote> The State's evidence was sufficient for the jury to find that defendant was constructively present at the time of the killing of Mitchell Turner so as to support his conviction of first-degree premeditated and deliberated murder under the theory of acting in concert where the evidence tended to show that defendant and his two companions (an older man and a tall man) planned to sell fake cocaine to the victim and his brother at a used car lot; the victim intended to test the powder to determine if it was cocaine; at defendant's suggestion, defendant, the tall man, the victim's brother and a friend of the victim left the car lot and went about a mile and a half from the crime scene to buy baking soda for use in the testing, although defendant had baking soda with him; the older man stayed at the car lot office with the victim; on the ride back from the store, defendant suggested that they not return directly to the car lot; upon arriving at the car lot, defendant attempted to hamper the return of the victim's brother to the office; defendant expressed no surprise at seeing a powdery substance strewn outside the office; and the victim was shot in the back and in the lower abdominal region. The jury could infer from this evidence that defendant and his companions decided to kill the victim and his brother when it became apparent that the victim intended to test the powder and that defendant provided assistance to the older man by momentarily removing the victim's brother and his friend from the scene and by returning to provide a means for the men to flee the scene.</block_quote> <bold>Am Jur 2d, Criminal Law §§ 168-171; Homicide §§ 28, 29, 445</bold>. <bold>4. Homicide § 267 (NCI4th) — killing during robbery — guilt of</bold> <bold>robbery — guilt of felony murder</bold> <block_quote> The State's evidence was sufficient to support defendant's conviction of felony murder of Mitchell Turner where it tended to show that defendant was guilty of armed robbery and that the victim was killed during perpetration of the robbery. Whether there is sufficient evidence to show that defendant either committed the killing himself, intended that the killing take place or even knew that the killing would take place is irrelevant for purposes of determining defendant's guilt under the felony murder rule.</block_quote> <bold>Am Jur 2d, Homicide §§ 72-75</bold>.<page_number>Page 166</page_number> <block_quote> <bold>Homicide: Criminal Liability for death resulting from unlawfully</bold> <bold>furnishing intoxicating liquor or drugs to another. 32 ALR3d 589</bold>.</block_quote> <block_quote> <bold>What constitutes termination of felony for purpose of felony-murder</bold> <bold>rule. 58 ALR3d 851</bold>.</block_quote> <bold>5. Evidence and Witnesses § 222 (NCI4th) — flight — hearsay</bold> <bold>testimony — harmless error</bold> <block_quote> Assuming <italic>arguendo</italic> that the trial court erred by permitting the investigating officer's hearsay testimony on flight that defendant was not found at an address in Richmond, Va. when police arrived there seeking to arrest him for a murder in this state, this error was harmless beyond a reasonable doubt where ample evidence was presented that defendant was not apprehended until almost three years after the murder although defendant was an immediate suspect, and the officer also presented admissible flight evidence that he contacted law enforcement officials in at least two other states in an attempt to find defendant.</block_quote> <bold>Am Jur 2d, Evidence §§ 532-535</bold>. <bold>6. Criminal Law § 427 (NCI4th) — capital trial — guilt phase —</bold> <bold>closing argument — defendant's demeanor — not comment on failure to</bold> <bold>testify</bold> <block_quote> The prosecutor's comment on defendant's demeanor in the closing argument of the guilt/innocence phase of a first-degree murder trial did not constitute an improper comment on defendant's failure to testify.</block_quote> <bold>Am Jur 2d, Trial §§ 577-587</bold>. <block_quote> <bold>Comment or argument by court or counsel that prosecution evidence is</bold> <bold>uncontradicted as amounting to improper reference to accused's failure</bold> <bold>to testify. 14 ALR3d 723</bold>.</block_quote> <block_quote> <bold>Supreme Court's views as to what comments by prosecuting attorney</bold> <bold>violate accused's privilege against self-incrimination under Federal</bold> <bold>Constitution's Fifth Amendment. <cross_reference>99 L.Ed.2d 926</cross_reference></bold>.</block_quote><page_number>Page 167</page_number> <bold>7. Criminal Law § 427 (NCI4th) — capital trial — closing argument</bold> <bold>— defendant's knowledge of facts — not comment on failure to</bold> <bold>testify</bold> <block_quote> The prosecutor's comment during his closing argument in a first-degree murder trial that "[t]he only one that knows is that man right there and his two buddies" did not constitute an improper comment on defendant's failure to testify where it is clear that the prosecutor was stating that he could not explain every detail of the crime to the jury and that defendant had failed to refute the State's theory of how the victim was killed.</block_quote> <bold>Am Jur 2d, Trial §§ 577-587</bold>. <block_quote> <bold>Comment or argument by court or counsel that prosecution evidence is</bold> <bold>uncontradicted as amounting to improper reference to accused's failure</bold> <bold>to testify. 14 ALR3d 723</bold>.</block_quote> <block_quote> <bold>Supreme Court's views as to what comments by prosecuting attorney</bold> <bold>violate accused's privilege against self-incrimination under Federal</bold> <bold>Constitution's Fifth Amendment. <cross_reference>99 L.Ed.2d 926</cross_reference></bold>.</block_quote> <bold>8. Criminal Law § 442 (NCI4th) — capital trial — closing argument</bold> <bold>— comment on seriousness of crimes and jury's duty</bold> <block_quote> The prosecutor's closing argument in a trial for two first-degree murders did not impermissibly urge guilty verdicts based on general deterrence and community fear of crime; rather, the prosecutor was commenting on the seriousness of the crimes and the importance of the jury's duty, and there was no gross impropriety in these comments which required the trial court to intervene <italic>ex mero motu</italic>.</block_quote> <bold>Am Jur 2d, Trial §§ 567-569</bold>. <block_quote> <bold>Prejudicial effect of prosecuting attorney's argument to jury that</bold> <bold>people of city, county, or community want or expect a conviction.</bold> <bold>85 ALR2d 1132</bold>.</block_quote> <bold>9. Criminal Law § 1312 (NCI4th) — capital sentencing — good</bold> <bold>character evidence — rebuttal by prior bad acts</bold> <block_quote> The State could properly cross-examine defendant's mother in a capital sentencing proceeding about rumors that defendant had killed two other persons and wounded a third person in order<page_number>Page 168</page_number> to rebut evidence of good character presented by defendant through the testimony of his mother.</block_quote> <bold>Am Jur 2d, Criminal Law §§ 598, 599</bold>. <bold>10. Criminal Law § 454 (NCI4th) — capital sentencing — closing</bold> <bold>argument — biblical references — harmless error</bold> <block_quote> Assuming <italic>arguendo</italic> that it was improper for the prosecutor to argue in a capital sentencing proceeding that defendant violated the laws of nature established by God when he, rather than God, decided the time and place of the victims' deaths and that this error implicates defendant's constitutional rights, the error was harmless beyond a reasonable doubt where there was overwhelming evidence of defendant's guilt and where the prosecutor's remarks were made in anticipation of contrasting biblical arguments made by defense counsel.</block_quote> <bold>Am Jur 2d, Trial § 572</bold>. <bold>11. Criminal Law § 1373 (NCI4th) — death sentences not</bold> <bold>disproportionate</bold> <block_quote> Sentences of death imposed upon defendant for two first-degree murders were not excessive or disproportionate to the penalty imposed in similar cases where the jury found the course of conduct and pecuniary gain aggravating circumstances for each murder; no juror found the existence of any mitigating circumstance; and the evidence showed that defendant and his companions planned to sell fake cocaine to the victims, the victims indicated an intent to test the substance to determine if it was cocaine, and defendant shot one victim and one of his companions shot the second victim in order to steal money possessed by the victims.</block_quote> <bold>Am Jur 2d, Criminal Law § 628</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</italic></bold> <bold>cases. 66 ALR4th 417</bold>.</block_quote> <block_quote> <bold>Supreme Court's views on constitutionality of death penalty and</bold> <bold>procedures under which it is imposed or carried out. <cross_reference>90 L.Ed.2d 1001</cross_reference></bold>.</block_quote><page_number>Page 169</page_number> <block_quote> <bold>Validity of death penalty, under Federal Constitution, as affected</bold> <bold>by consideration of aggravating or mitigating circumstances — Supreme</bold> <bold>Court cases. <cross_reference>111 L.Ed.2d 947</cross_reference></bold>.</block_quote>

<bold>1. Robbery § 71 (NCI4th) — taking of car as part of murder — evidence</bold> <bold>insufficient</bold> <block_quote> The trial court erred by denying defendant's motion to dismiss a charge of robbery with a dangerous weapon arising from the killing of his mother where the evidence was insufficient to show that defendant used a weapon to force the victim to give him her car. The State's evidence shows no more than that the defendant already had possession and use of the vehicle before the killing and retained the vehicle afterwards.</block_quote> <bold>Am Jur 2d, Robbery §§ 5, 22, 62 et seq</bold>.<page_number>Page 241</page_number> <bold>2. Evidence and Witnesses § 172 (NCI4th) — murder — victim's statements</bold> <bold> — relevant</bold> <block_quote> The trial court did not err in a prosecution for first-degree murder by admitting statements made by the victim which defendant admits fall under N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 803(3) but contends are not relevant. Evidence that the victim intended to decrease the financial benefits flowing to her son, the defendant, as well as evidence that she was angry and intended to give her son an ultimatum, was relevant to show the status of their relationship just prior to the victim's death. Both statements also were relevant as they related to a potential confrontation with the defendant, and whether defendant knew of the statements is irrelevant.</block_quote> <bold>Am Jur 2d, Evidence §§ 556, 667</bold>. <bold>3. Evidence and Witnesses § 172 (NCI4th) — murder — victim's statements</bold> <bold> — admissible</bold> <block_quote> The trial court did not err in a first-degree murder prosecution by admitting statements by the victim where the statements were not admitted to prove the truth of the matter asserted, the relevance was so remote as to render admission harmless, or the statements were admissible in light of the admissibility of other statements.</block_quote> <bold>Am Jur 2d, Evidence §§ 556, 667</bold>. <bold>4. Evidence and Witnesses §§ 923, 929, 1162 (NCI4th) — murder — </bold> <bold>defendant's statement to wife — instruction to call father and</bold> <bold>police — admissible</bold> <block_quote> The trial court in a first-degree murder prosecution properly admitted testimony from the defendant's father and from a detective that defendant's wife had told them of a telephone call in which defendant had told her that he had shot his mother and asked her to call his father and have him call the police. Defendant did not intend that his statement to his wife be confidential; he specifically told her to let other people know what he had told her. Although the testimony of the father and the detective was hearsay, the father's testimony fits easily under the excited utterance exception because the wife called him approximately three minutes after her conversation with defendant, when she would have been under the influence of an undoubtedly startling event. As to the detective, even if the rule applies that<page_number>Page 242</page_number> the hearsay statement of an agent cannot be used to establish agency, the rule is satisfied through the testimony of the father, admitted under another exception. N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rules 803(2),801(d)(C).</block_quote> <bold>Am Jur 2d, Evidence § 865; Witnesses §§ 309-319</bold>. <block_quote> <bold>Marital privilege under Rule 501 of Federal Rules of Evidence</bold>. <bold>46 ALR Fed. 735</bold>.</block_quote> <block_quote> <bold>When is hearsay statement an "excited utterance" admissible under</bold> <bold>Rule <cross_reference>803</cross_reference>(2) of the Federal Rules of Evidence. 48 ALR Fed. 451</bold>.</block_quote> <bold>5. Homicide § 253 (NCI4th) — first-degree murder — premeditation and</bold> <bold>deliberation — evidence sufficient</bold> <block_quote> There was sufficient evidence of premeditation and deliberation in a first-degree murder prosecution where defendant did not make any statement as to how the killing occurred other than a telephone call to his wife in which he said that he had killed his mother and that she should tell his father to call the police; the victim was shot several times in the head and back and was stabbed in the back; the trigger on the rifle found to have fired the casings at the scene had to be pulled each time the weapon was fired; there is no evidence that the victim had a weapon or offered any threat to defendant; and she was unarmed and lying in her bed wearing headphones when she was killed.</block_quote> <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> <bold>6. False Pretenses, Cheats, and Related Offenses § 70.1 (NCI4th) — </bold> <bold>financial transaction card theft — sufficiency</bold> <bold>of evidence</bold> <block_quote> Judgment on the charges of financial transaction card theft and fraud was arrested in a prosecution arising from the killing of defendant's mother where there was no direct evidence that defendant did not have permission to use the card, defendant knew the correct combination of numbers to receive money from the machine, and must have learned the combination from his mother, which shows she could have allowed him to use the card, he used the card at least two days before the death of his mother,<page_number>Page 243</page_number> which shows he had the card in his possession while his mother was alive, and there is no indication that she objected to his having it.</block_quote> <bold>Am Jur 2d, Fraud and Deceit §§ 468 et seq.; Larceny §§ 28 et seq</bold>.

<bold>Forgery § 28 (NCI4th) — uttering a forged check — check passed but</bold> <bold>not cashed — no variance between allegation and verdict</bold> <block_quote> There was not a material variance between an allegation and a verdict and judgment where defendant attempted to cash a check with an endorsement on the back; the clerk at the convenience store knew the person to whom the check was payable, called her and learned that she had not authorized anyone to cash the check; the clerk then called the police who arrested defendant upon their arrival; and the clerk turned the check over to the police without cashing it. Both the plain language of N.C.G.S. § <cross_reference>14-120</cross_reference> and the clear precedent established by <italic>State v. Greenlee</italic>, <cross_reference>272 N.C. 651</cross_reference>, mandate the conclusion that uttering is accomplished either when an individual passes or delivers a forged instrument or attempts to pass or deliver a forged instrument. The use of "utter" in the context of the information set forth in the indictment did not alter the charge of uttering otherwise properly alleged in the indictment and therefore did not invalidate the indictment.</block_quote> <bold>Am Jur 2d, Forgery §§ 20, 33, 34</bold>.

<bold>1. Constitutional Law § 287 (NCI4th) — capital murder — motion of</bold> <bold>counsel to withdraw — denied — no denial of Sixth Amendment rights</bold> <block_quote> The trial court did not err in a first-degree murder prosecution by not allowing trial counsel to withdraw where the attorneys who had represented defendant in his first trial were appointed for the retrial; counsel described in their withdrawal motion disputes with defendant; defendant had accused them of conspiring with prosecutors, alleged that they wanted to see him executed, and alleged that exhibits had been altered; defendant had become violent during their last conference, tearing pages from a tablet, ordering them from the room, and threatening to fight them; and counsel added at the hearing that defendant was not cooperative, that he had lost all confidence in them and did not believe that they had his best interest at heart, and that two other attorneys had agreed to serve as counsel. A review of the transcript and record of the trial reveals that defense counsel zealously represented their client and that any disputes were resolved before trial, and there is no indication that defendant's outburst a week prior to his trial adversely affected the representation of defendant by his attorneys at trial. Defendant's Sixth Amendment guarantee of effective assistance of counsel was not violated.</block_quote> <block_quote> <bold>Am Jur 2d, Attorneys at Law §§ 168, 173-175; Criminal Law §§</bold> <bold>984-987</bold>.</block_quote> <block_quote> <bold>Attorney's refusal to accept appointment to defend indigent, or to</bold> <bold>proceed in such defense, as contempt. 36 ALR3d 1221</bold>.</block_quote> <block_quote> <bold>Indigent accused's right to choose particular counsel appointed to</bold> <bold>assist him. 66 ALR3d 996</bold>.</block_quote> <block_quote> <bold>Power of court to change counsel appointed for indigent, against</bold> <bold>objections of accused and original counsel. 3 ALR4th 1227</bold>.</block_quote><page_number>Page 400</page_number> <bold>2. Criminal Law § 78 (NCI4th) — capital murder — retrial — motion for</bold> <bold>change of venue — pretrial publicity</bold> <block_quote> The trial court did not abuse its discretion in a retrial for first-degree murder by denying defendant's pretrial motion for a change of venue where defendant argued he could not receive a fair trial because the county was small and publicity for the first trial had been intense, adding that it would be difficult to select a jury with black members because so many of the potential black jurors in the county knew the victims. Defendant's evidence consisted of newspaper articles on the first trial, which were essentially factual and were published almost four years prior to the retrial. Defendant also presented evidence that there were approximately 1,600 potential jurors left for the venire in his retrial, certainly a sufficient number from which to select an impartial jury of twelve.</block_quote> <bold>Am Jur 2d, Criminal Law §§ 372-397; Venue §§ 48 et seq</bold>. <block_quote> <bold>Pretrial publicity in criminal case as ground for change of venue</bold>. <bold>33 ALR3d 17</bold>.</block_quote> <block_quote> <bold>Choice of venue to which transfer is to be had, where change is</bold> <bold>sought because of local prejudice. 50 ALR3d 760</bold>.</block_quote> <bold>3. Constitutional Law § 338 (NCI4th) — capital murder — no black jurors</bold> <bold>— Sixth Amendment challenge — fair cross section — no mistrial</bold> <block_quote> The trial court did not abuse its discretion by denying defendant's motions for a mistrial and change of venue in a first-degree murder retrial where no black jurors had been seated at the time the motion was made. Defendant does not allege and the evidence does not show a <italic>Batson</italic> violation and there was no indication that any potential juror was struck peremptorily on the basis of race or that any blacks were excluded from the jury venire; black persons were excluded from the jury for a variety of reasons ranging from health problems to views on the death penalty. Defendant essentially argues that he is entitled to have persons of his race serve on the jury that tries him, which may be a desirable goal, but is not required; what the law requires is that there be no systematic exclusion of certain constitutionally cognizable groups from the venire and that no potential juror be excluded from the petit jury on account of race or gender. Defendant here<page_number>Page 401</page_number> has not shown that he did not receive the treatment that the law requires.</block_quote> <bold>Am Jur 2d, Jury §§ 7, 131-139, 156</bold>. <block_quote> <bold>Use of peremptory challenges to exclude ethnic and racial groups</bold>, <bold>other than black Americans, from criminal jury — post-</bold><bold><italic>Batson state</italic></bold> <bold>cases. 20 ALR5th 398</bold>.</block_quote> <block_quote> <bold>Supreme Court's views as to use of peremptory challenges to exclude</bold> <bold>from jury persons belonging to same race as criminal defendant</bold>. <bold><cross_reference>90 L.Ed.2d 1078</cross_reference></bold>.</block_quote> <bold>4. Jury 203 (NCI4th) — capital murder — juror initially</bold> <bold>expressing bias against defendant — rehabilitated by judge</bold> <block_quote> The trial court did not abuse its discretion in a first-degree murder retrial by refusing to excuse a juror who expressed bias against defendant where the juror first responded that he thought defendant was guilty but unambiguously responded after being questioned by the judge that he could put aside his knowledge of the case, that his knowledge of the case would not affect his ability to render a fair and impartial verdict, and that he could base his verdict on the evidence presented at trial.</block_quote> <bold>Am Jur 2d, Jury §§ 266, 267, 289-292</bold>. <block_quote> <bold>Bias, prejudice, or conduct of individual member or members of jury</bold> <bold>panel as ground for challenge to array or to entire panel</bold>. <bold>76 ALR2d 678</bold>.</block_quote> <bold>5. Homicide § 333 (NCI4th) — involuntary manslaughter — stabbing —</bold> <bold>foreseeability</bold> <block_quote> The trial court did not err in a retrial for first-degree murder and manslaughter by denying defendant's motion to dismiss the charge of involuntary manslaughter. It was not necessary that defendant foresee that the victim would die from the assault, just that he foresee that some serious injury might result, and the evidence shows that the victim was a fifty-seven year-old woman and that defendant was well aware of her state of health. It is reasonable that defendant would have foreseen that two stab wounds to a woman of her age and health would be injurious to her.</block_quote> <block_quote> <bold>Am Jur 2d, Homicide §§ 474, 496; Trial §§ 1077-1079, 1093, 1121</bold>, <bold>1123</bold>.</block_quote><page_number>Page 402</page_number> <block_quote> <bold>Necessity that trial court charge upon motive in homicide case. 71</bold> <bold>ALR2d 1025</bold>.</block_quote> <block_quote> <bold>Propriety of manslaughter conviction in prosecution for murder</bold>, <bold>absent proof of necessary elements of manslaughter. 19 ALR4th 861</bold>.</block_quote> <bold>6. Evidence and Witnesses § 2182 (NCI4th) — capital murder — defense</bold> <bold>expert — range of possible blood alcohol level — excluded</bold> <block_quote> The trial court did not err in a first-degree murder retrial by prohibiting a defense expert from testifying about the range of defendant's possible blood-alcohol level at the time of the alleged offense where the expert testified that he based his estimate on information received from defendant and standard considerations such as defendant's weight, but defendant testified that he did not know the quantity of liquor he consumed or the percentage of alcohol in the liquor, there was uncertainty concerning defendant's actual weight at the time of the homicides, and the expert used the average rate of metabolism in his calculations rather than defendant's actual rate, but admitted during <italic>voir dire</italic> that the rate of metabolism might vary considerably among individuals. There was an inadequate basis for the opinion.</block_quote> <block_quote> <bold>Am Jur 2d, Expert and Opinion Evidence §§ 6, 32-36, 214-216,</bold> <bold>228-232</bold>.</block_quote> <block_quote> <bold>Qualification as expert to testify as to findings or results of</bold> <bold>scientific test to determine alcoholic content of blood. 77 ALR2d 971</bold>.</block_quote> <bold>7. Criminal Law § 460 (NCI4th) — capital murder — closing argument —</bold> <bold>speculation on defendant's blood alcohol level — no gross</bold> <bold>impropriety</bold> <block_quote> There was no gross impropriety in the prosecutor's closing argument in a first-degree murder retrial requiring intervention <italic>ex mero motu</italic> where the court had excluded expert testimony regarding the range of defendant's blood alcohol level and the prosecutor speculated as to defendant's blood alcohol level.</block_quote> <bold>Am Jur 2d, Trial §§ 533, 534, 555, 564, 615</bold>.<page_number>Page 403</page_number> <bold>8. Criminal Law § 441 (NCI4th) — capital murder — prosecutor's argument</bold> <bold>— credibility of witness</bold> <block_quote> The trial court did not err in a first-degree murder retrial by not intervening <italic>ex mero motu</italic> in a portion of the prosecutor's closing argument in which it was argued that the jury should not credit an expert's testimony.</block_quote> <bold>Am Jur 2d, Trial §§ 544, 555, 695</bold>. <bold>9. Evidence and Witnesses § 668 (NCI4th) — capital murder —</bold> <bold>cross-examination — no plain error</bold> <block_quote> There was no plain error in a first-degree murder retrial in allowing the State to elicit testimony on cross-examination that one of defendant's character witnesses, a police captain, knew defendant's brother because he had arrested him on a number of occasions.</block_quote> <bold>Am Jur 2d, Witnesses §§ 811-823</bold>. <block_quote> <bold>Cross-examination by leading questions of witness friendly to or</bold> <bold>biased in favor of cross-examiner. 38 ALR2d 952</bold>.</block_quote> <block_quote> <bold>Use of unrelated misdemeanor conviction (other than for traffic</bold> <bold>offense) to impeach general credibility of witness in state civil case</bold>. <bold>97 ALR3d 1150</bold>.</block_quote> <bold>10. Criminal Law § 1339 (NCI4th) — capital sentencing — aggravating</bold> <bold>circumstance — course of conduct</bold> <block_quote> The trial court did not err in a first-degree murder retrial by submitting as an aggravating circumstance that the murder was part of a violent course of conduct that included defendant's commission of another crime of violence against another person where there was sufficient evidence of the other crime of violence, involuntary manslaughter with regard to the murder victim's mother, and the evidence showed a violent course of conduct in that the manslaughter victim was stabbed when she attempted to intervene while defendant was stabbing her daughter. The stabbings were very close in time and defendant used the same <italic>modus operandi</italic> in that he stabbed them both with a knife.</block_quote> <bold>Am Jur 2d, Criminal Law §§ 598, 599, 609, 627, 628</bold>. <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty, to establish</bold> <bold>statutory aggravating circumstance that in</bold><page_number>Page 404</page_number> <bold>committing murder, defendant</bold> <bold>created risk of death or injury</bold> <bold>to more than one person, to many</bold> <bold>persons, and the like —</bold> <bold>post-</bold><bold><italic>Gregg</italic></bold> <bold>cases. 64 ALR4th 837</bold>.</block_quote> <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty, to establish</bold> <bold>statutory aggravating circumstance that defendant was previously</bold> <bold>convicted of or committed other violent offense, had history of violent</bold> <bold>conduct, posed continuing threat to society, and the like — post-</bold><bold><italic>Gregg</italic></bold> <bold>cases. 65 ALR4th 838</bold>.</block_quote> <block_quote> <bold>Sufficiency of evidence, for death penalty purposes, to establish</bold> <bold>statutory aggravating circumstance that murder was committed in course</bold> <bold>of committing, attempting, or fleeing from other offense, and the</bold> <bold>like — post-</bold><bold><italic>Gregg</italic></bold> <bold>cases. 67 ALR4th 887</bold>.</block_quote> <bold>11. Criminal Law § 1339 (NCI4th) — capital sentencing — aggravating</bold> <bold>circumstances — course of conduct — instructions</bold> <block_quote> Instructions in a capital murder prosecution defining the aggravating circumstance that the murder was part of a course of conduct involving commission of a crime of violence against another person were not unconstitutionally vague.</block_quote> <bold>Am Jur 2d, Criminal Law §§ 598, 599, 609</bold>. <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty, to establish</bold> <bold>statutory aggravating circumstance that in committing murder, defendant</bold> <bold>created risk of death or injury to more than</bold> <bold>one person, to many persons, and the like — post-</bold><bold><italic>Gregg</italic></bold> <bold>cases. 64 ALR4th</bold> <bold>837</bold>.</block_quote> <block_quote> <bold>Sufficiency of evidence, for death penalty purposes, to establish</bold> <bold>statutory aggravating circumstance that murder was committed in course</bold> <bold>of committing, attempting, or fleeing from other offense, and the</bold> <bold>like — post-</bold><bold><italic>Gregg</italic></bold> <bold>cases. 67 ALR4th 887</bold>.</block_quote> <bold>12. Criminal Law § 680 (NCI4th) — capital sentencing — peremptory</bold> <bold>instruction not given — defendant's good character</bold> <block_quote> The trial court did not err in a first-degree murder retrial where defendant contended that the court erred by not giving a peremptory instruction on the nonstatutory mitigating circumstance<page_number>Page 405</page_number> that defendant is a person of good character in the community in which he lives because the court gave the instruction after initially declining. Although defendant contends that the use of the word "and" rather than "as" in the phrase ". . . if . . . you find the facts to be and all the evidence tends to show. . ." increased his burden of persuasion and was not a peremptory instruction, the use of "and" was a <italic>lapsus linguae</italic> and did not have a prejudicial effect on defendant.</block_quote> <bold>Am Jur 2d, Criminal Law §§ 598, 599; Trial § 1350</bold>. <bold>13. Criminal Law §§ 1320, 1360 (NCI4th) — capital sentencing — mitigating</bold> <bold>circumstances — only some evidence mentioned</bold> <block_quote> There was no error in a first-degree murder retrial where defendant contended that the trial court erred by limiting the causes of the mitigating circumstance of impaired capacity to certain specified causes that omitted other causes supported by the uncontradicted evidence. A trial judge's mention of only some of the evidence supporting a mitigating circumstance does not preclude jurors from considering other evidence that might support such a circumstance.</block_quote> <bold>Am Jur 2d, Criminal Law §§ 598, 599; Trial §§ 1279, 1280</bold>. <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty, to establish</bold> <bold>statutory aggravating circumstance that murder was heinous, cruel</bold>, <bold>depraved, or the like — post-</bold><bold><italic>Gregg</italic></bold> <bold>cases. 63 ALR4th 478</bold>.</block_quote> <bold>14. Criminal Law § 1343 (NCI4th) — capital sentencing — especially</bold> <bold>heinous, atrocious, or cruel — not unconstitutionally vague</bold> <block_quote> The jury's determination in a first-degree murder retrial that the murder was especially heinous, atrocious, or cruel was not based on unconstitutionally vague instructions.</block_quote> <bold>Am Jur 2d, Criminal Law §§ 609, 627, 628; Trial §§ 1124, 1138</bold>. <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty, to establish</bold> <bold>statutory aggravating circumstance that murder was heinous, cruel</bold>, <bold>depraved, or the like — post-</bold><bold><italic>Gregg</italic></bold> <bold>cases. 63 ALR4th 478</bold>.</block_quote><page_number>Page 406</page_number> <bold>15. Criminal Law § 1351 (NCI4th) — capital sentencing — mitigating</bold> <bold>circumstance — burden of proof — not unconstitutional</bold> <block_quote> The trial court's instructions in a first-degree murder retrial defining the burden of proof applicable to mitigating circumstances did not violate the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.</block_quote> <bold>Am Jur 2d, Criminal Law §§ 598, 599; Trial §§ 1184, 1202, 1289-1292</bold>. <bold>16. Criminal Law § 1363 (NCI4th) — capital sentencing — mitigating</bold> <bold>circumstances — value</bold> <block_quote> The trial court in a first-degree murder retrial did not violate the Eighth and Fourteenth Amendments to the United States Constitution by allowing the jury to refuse to give effect to mitigating evidence if the jury deemed it did not have mitigating value.</block_quote> <bold>Am Jur 2d, Trial §§ 1759, 1760</bold>. <bold>17</bold>. <bold>Criminal Law § 1363 (NCI4th) — capital sentencing — mitigating</bold> <bold>circumstances — value</bold> <block_quote> The trial court did not err in a first-degree murder retrial by allowing jurors not to give effect to mitigating circumstances found by the jurors.</block_quote> <bold>Am Jur 2d, Trial §§ 1759, 1760</bold>. <bold>18. Criminal Law § 1373 (NCI4th) — death sentence — not disproportionate</bold> <block_quote> A death sentence in a first-degree murder retrial was not disproportionate where the record fully supports the two aggravating circumstances found by the jury, there is no indication that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary consideration, this case is not substantially similar to any of the cases in which the death penalty was found disproportionate, and this case is similar to certain cases in which the death sentence was found proportionate. North Carolina has never found disproportionality in a case in which the defendant was found guilty for the death of more than one person, multiple aggravating circumstances were found to exist in only one case where the death sentence was found disproportionate, and the especially heinous, atrocious, or cruel<page_number>Page 407</page_number> aggravating circumstance has been found as the sole aggravating circumstance in many cases where the death sentence was found proportionate.</block_quote> <bold>Am Jur 2d, Criminal Law §§ 609, 627-629</bold>. <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty, to establish</bold> <bold>statutory aggravating circumstance that murder was heinous, cruel</bold>, <bold>depraved, or the like — post-</bold><bold><italic>Gregg</italic></bold> <bold>cases. 63 ALR4th 478</bold>.</block_quote> <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty, to establish</bold> <bold>statutory aggravating circumstance that in committing murder, defendant</bold> <bold>created risk of death or injury to more than one person, to many</bold> <bold>persons, and the like — post-</bold><bold><italic>Gregg</italic></bold> <bold>cases. 64 ALR4th 837</bold>.</block_quote>

<bold>1. Evidence and Witnesses § 2302 (NCI4th) — absence of cool</bold> <bold>state of mind — expert testimony properly excluded</bold> <block_quote> The trial court did not err by preventing an expert in forensic psychology from using the phrase "cool state of mind" to convey to the jury that defendant lacked the specific intent necessary to commit premeditated and deliberate murder at the time he shot the two victims where the trial court on <italic>voir dire</italic> explained to the psychologist the legal import of acting in a cool state of mind; the witness conceded that the legal and medical definitions of the phrase differed but stated that he meant to convey to the jury that defendant was not acting with a cool state of mind in the medical sense; and the trial court emphasized that the psychologist could use other terminology to convey his opinion to the jury and ruled that other questions regarding defendant's state of mind that defendant sought to pose to the expert witness would be allowed.</block_quote> <block_quote> <bold>Am Jur 2d, Evidence §§ 338, 351; Expert and Opinion</bold> <bold>Evidence §§ 190, 256; Trial § 341</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><page_number>Page 700</page_number> <block_quote> <bold>Comment Note. — Mental or emotional condition as</bold> <bold>diminishing responsibility for crime. 22 ALR3d 1228</bold>.</block_quote> <bold>2. Evidence and Witnesses § 2051 (NCI4th) — belief by</bold> <bold>witness — instantaneous conclusion of the mind</bold> <block_quote> Testimony by defendant's brother-in-law in a prosecution for two first-degree murders that he believed that "[defendant was] going to kill everybody" was admissible as an instantaneous conclusion as to defendant's condition and state of mind based upon the witness's opportunity to observe defendant shoot his father, yell at his own children, reload his weapon, and threaten to shoot the witness.</block_quote> <bold>Am Jur 2d, Evidence §§ 556, 557</bold>. <block_quote> <bold>Comment Note. — Ability to see, hear, smell, or otherwise sense,</bold> <bold>as proper subject of opinion by lay witness. 10 ALR3d 258</bold>.</block_quote> <block_quote> <bold>Construction and application of Rule 701 of Federal</bold> <bold>Rules of Evidence, providing for opinion testimony by lay</bold> <bold>witnesses under certain circumstances. 44 ALR Fed. 919</bold>.</block_quote> <bold>3. Homicide § 706 (NCI4th) — first-degree murder — failure</bold> <bold>to instruct on voluntary manslaughter — error cured by verdict</bold> <block_quote> Where the trial court instructed the jury on first-degree and second-degree murder for each of two killings and the jury returned a verdict of guilty of first-degree murder based on malice, premeditation and deliberation for each, any error in the court's failure to instruct on voluntary manslaughter is harmless.</block_quote> <bold>Am Jur 2d, Trial §§ 1142, 1427-1435, 1483</bold>. <block_quote> <bold>Modern status of law regarding cure of error, in</bold> <bold>instruction as to one offense, by conviction of higher or</bold> <bold>lesser offense. 15 ALR4th 118</bold>.</block_quote> <bold>4. Homicide § 663 (NCI4th) — voluntary intoxication — instruction</bold> <bold>not required</bold> <block_quote> The trial court was not required to instruct on voluntary intoxication in a prosecution for two first-degree murders where the combined testimony of defendant and other witnesses established that defendant was intoxicated at the time of the murders,<page_number>Page 701</page_number> but defendant failed to produce substantial evidence that he was so intoxicated that he could not form a deliberate and premeditated intent to kill.</block_quote> <bold>Am Jur 2d, Evidence § 746; Trial §§ 769, 1279, 1280</bold>. <block_quote> <bold>Modern status of test of criminal responsibility — state</bold> <bold>cases. 9 ALR4th 526</bold>.</block_quote> <block_quote> <bold>When intoxication deemed involuntary so as to constitute</bold> <bold>a defense to criminal charge. 73 ALR3d 195</bold>.</block_quote> <block_quote> <bold>Comment Note. — Mental or emotional condition as</bold> <bold>diminishing responsibility for crime. 22 ALR3d 1228</bold>.</block_quote> <bold>5. Criminal Law § 774 (NCI4th); Homicide § 694 (NCI4th) — defense</bold> <bold>of unconsciousness or automatism — instruction not required</bold> <block_quote> The trial court did not err by refusing to instruct on the defense of unconsciousness or automatism in a prosecution for two first-degree murders where defendant relied only upon his own self-serving testimony at trial that he could not remember many of his actions on the day of the crimes, attributing his memory loss to flashbacks from his experiences in Vietnam; defendant's testimony was contradicted by an inculpatory statement he gave to police within hours of committing the murders in which he was able to recall many of the graphic details of the murders; and neither of defendant's expert witnesses gave testimony in support of defendant's unconsciousness claim.</block_quote> <bold>Am Jur 2d, Homicide § 116, 406</bold>. <block_quote> <bold>Comment Note. — Mental or emotional condition as</bold> <bold>diminishing responsibility for crime. 22 ALR3d 1228</bold>.</block_quote> <block_quote> <bold>Modern status of test of criminal responsibility — state</bold> <bold>cases. 9 ALR4th 526</bold>.</block_quote> <block_quote> <bold>Automatism or unconsciousness as defense to criminal</bold> <bold>charge. 27 ALR4th 1067</bold>.</block_quote> <bold>6. Criminal Law § 682 (NCI4th) — mitigating circumstance — mental</bold> <bold>or emotional disturbance — peremptory instruction not required</bold> <block_quote> Even though the expert testimony of a psychiatrist and a psychologist was some evidence from which the jury could conclude<page_number>Page 702</page_number> that defendant was under the influence of a mental or emotional disturbance when he murdered his father-in-law and wife, the trial court was not required to peremptorily instruct the jury on this mitigating circumstance where this expert testimony was contradicted by the testimony of a defense witness that defendant was his usual self and did not appear disoriented or unaware of what was going on around him on the afternoon of the murders, and by the testimony of a detective that defendant was able to provide a detailed statement in which he confessed to the murders and to answer numerous questions within the hour after his arrest. N.C.G.S. § <cross_reference>15A-2000</cross_reference>(f)(2).</block_quote> <block_quote> <bold>Am Jur 2d, Homicide § 114, 256, 406, 516, 576; Trial</bold> <bold>§§ 768, 835, 841, 1270-1278</bold>.</block_quote> <block_quote> <bold>Comment Note. — Mental or emotional condition as</bold> <bold>diminishing responsibility for crime. 22 ALR3d 1228</bold>.</block_quote> <block_quote> <bold>Modern status of test of criminal responsibility — state</bold> <bold>cases. 9 ALR4th 526</bold>.</block_quote> <bold>7. Criminal Law § 681 (NCI4th) — mitigating circumstance — impaired</bold> <bold>capacity — peremptory instruction not required</bold> <block_quote> The evidence of defendant's capacity to conform his conduct to the requirements of the law when he committed two murders was in controversy so that the trial court did not err by failing to give a peremptory instruction on this mitigating circumstance where two experts testified that defendant's capacity to conform his conduct to the requirements of the law was impaired, but this testimony was contradicted by evidence that, immediately after he committed the murders, defendant called 911, identified himself, and alerted the dispatcher to the murders, and that defendant thereafter surrendered and cooperated with law enforcement. N.C.G.S. § <cross_reference>15A-2000</cross_reference>(f)(6).</block_quote> <block_quote> <bold>Am Jur 2d, Homicide § 114, 256, 406, 516, 576; Trial</bold> <bold>§§ 768, 835, 841, 1270-1278</bold>.</block_quote> <block_quote> <bold>Comment Note. — Mental or emotional condition as</bold> <bold>diminishing responsibility for crime. 22 ALR3d 1228</bold>.</block_quote> <bold>8. Criminal Law § 680 (NCI4th) — nonstatutory mitigating</bold> <bold>circumstances — peremptory instructions not required</bold> <block_quote> The trial court did not err by failing to give a peremptory instruction on the nonstatutory mitigating circumstance that<page_number>Page 703</page_number> defendant suffered from learning disabilities which hindered his chances for success in school, although testimony by a psychologist supported this circumstance, where defendant's school record which was introduced into evidence did not identify any disability, and the psychologist's assessment over thirty years after defendant dropped out of school was not so manifestly credible as to mandate a peremptory instruction. Nor did the trial court err by failing to give a peremptory instruction on the nonstatutory mitigating circumstance that defendant was not acting in an entirely calm, rational manner at the time of each killing, assuming that this circumstance could properly be deemed mitigating, where there was evidence that defendant called 911 and surrendered to law enforcement immediately after he committed the crimes.</block_quote> <block_quote> <bold>Am Jur 2d, Homicide §§ 114, 256, 406, 516, 576; Trial</bold> <bold>§§ 768, 835, 841, 1270-1278</bold>.</block_quote> <block_quote> <bold>Comment Note. — Mental or emotional condition as</bold> <bold>diminishing responsibility for crime. 22 ALR3d 1228</bold>.</block_quote> <bold>9. Constitutional Law § 342 (NCI4th) — capital trial — absence</bold> <bold>of defendant from portion — harmless error standard</bold> <block_quote> Article I, Section 23 of the Constitution of North Carolina guarantees a criminal defendant the right to be present at every stage of his trial. The absence of a defendant from some portion of his capital trial is not automatically reversible error, however, as the Supreme Court applies a harmless error standard in such cases under which the State has the burden of establishing the error was harmless beyond a reasonable doubt.</block_quote> <bold>Am Jur 2d, Constitutional Law § 842; Trial § 1692</bold>. <block_quote> <bold>Accused's right, under Federal Constitution, to be</bold> <bold>present at his trial — Supreme Court cases. <cross_reference>25 L.Ed.2d 931</cross_reference></bold>.</block_quote> <bold>10. Constitutional Law § 342 (NCI4th) — capital trial — mitigating</bold> <bold>circumstances — conference in chambers — absence of defendant — harmless</bold> <bold>error</bold> <block_quote> The trial court's error in conducting a conference in chambers to discuss defendant's proposed mitigating circumstances in a capital sentencing proceeding without the presence of defendant<page_number>Page 704</page_number> was harmless beyond a reasonable doubt where defendant was represented by counsel at the conference; the entire conference was transcribed and made part of the record; defendant's counsel were given the opportunity to preserve on the record every objection to the trial court's rulings and the reasons for their objections; and the substance of each mitigating circumstance requested by defendant and discussed by defendant's counsel during the conference was later submitted to the jury.</block_quote> <block_quote> <bold>Am Jur 2d, Constitutional Law § 842; Judges § 28; Trial</bold> <bold>§§ 1692, 1777</bold>.</block_quote> <block_quote> <bold>Accused's right, under Federal Constitution, to be</bold> <bold>present at his trial — Supreme Court cases. <cross_reference>25 L.Ed.2d 931</cross_reference></bold>.</block_quote> <bold>11. Criminal Law § 1347 (NCI4th) — aggravating circumstance — course</bold> <bold>of conduct — not unconstitutionally vague</bold> <block_quote> The course of conduct aggravating circumstance set forth in N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e)(11) does not violate due process by reason of constitutional vagueness.</block_quote> <bold>Am Jur 2d, Constitutional Law § 818; Trial §§ 841, 1760</bold>. <bold>12. Criminal Law § 1347 (NCI4th) — two murders — aggravating</bold> <bold>circumstance — course of conduct — each killing as aggravator</bold> <bold>for the other</bold> <block_quote> The submission of one killing as an aggravating circumstance for another murder under the "course of conduct" provision of N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e)(11) does not violate due process or double jeopardy. Therefore, where the State presented substantial evidence tending to show that after defendant fatally shot his father-in-law, he fired his weapon at his wife and killed her, and the jury returned guilty verdicts of first-degree murder for each killing, the trial court correctly allowed the jury to consider the murder of each victim as the crime of violence to support the course of conduct aggravating circumstance in sentencing defendant for the murder of the other victim.</block_quote> <block_quote> <bold>Am Jur 2d, Constitutional Law §§ 813-815; Criminal</bold> <bold>Law §§ 243-248; Trial §§ 841, 1760</bold>.</block_quote> <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty,</bold> <bold>to establish statutory aggravating circumstance that in</bold><page_number>Page 705</page_number> <bold>committing murder, defendant created risk of death or</bold> <bold>injury to more than one person, to many persons, and the</bold> <bold>like — post-</bold><bold><italic>Gregg</italic></bold> <bold>cases. 64 ALR4th 837</bold>.</block_quote> <bold>13. Criminal Law § 1347 (NCI4th) — aggravating circumstance — course</bold> <bold>of conduct — other crimes of violence — charge or conviction not</bold> <bold>required</bold> <block_quote> N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e)(11) does not require that defendant be charged or convicted of the "other crimes of violence" before the course of conduct aggravating circumstance may be submitted. Rather, the import of the (e)(11) aggravating circumstance is that such crimes connect with the capital murder, whether temporally, by <italic>modus operandi</italic> or motivation, or by some common scheme or pattern.</block_quote> <bold>Am Jur 2d, Trial §§ 841, 1760</bold>. <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty,</bold> <bold>to establish statutory aggravating circumstance that in</bold> <bold>committing murder, defendant created risk of death or</bold> <bold>injury to more than one person, to many persons, and the</bold> <bold>like — post-</bold><bold><italic>Gregg</italic></bold> <bold>cases. 64 ALR4th 837</bold>.</block_quote> <bold>14. Criminal Law § 1347 (NCI4th) — aggravating circumstance — course</bold> <bold>of conduct — other crime of violence — uncharged assault against</bold> <bold>third person</bold> <block_quote> Where the State presented compelling evidence that immediately after fatally shooting his father-in-law and his wife, defendant assaulted his wife's brother with a deadly weapon with the intent to kill him, the trial court did not err by instructing the jury that it could find as an aggravating circumstance for each murder that defendant committed the assault as part of the same course of conduct with the killing of the victims even though defendant has not been charged with the assault.</block_quote> <bold>Am Jur 2d, Trial §§ 841, 1760</bold>. <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty,</bold> <bold>to establish statutory aggravating circumstance that in</bold> <bold>committing murder, defendant created risk of death or</bold> <bold>injury to more than one person, to many persons, and the</bold> <bold>like — post-</bold><bold><italic>Gregg</italic></bold> <bold>cases. 64 ALR4th 837</bold>.</block_quote><page_number>Page 706</page_number> <bold>15. Criminal Law § 1355 (NCI4th) — mitigating circumstance — no</bold> <bold>prior criminal history — submission not required</bold> <block_quote> The trial court did not err by refusing to submit to the jury the statutory mitigating circumstance that defendant had no significant history of prior criminal activity where neither the State nor defendant presented any evidence as to defendant's prior criminal history. N.C.G.S. § <cross_reference>15A-2000</cross_reference>(f)(1).</block_quote> <block_quote> <bold>Am Jur 2d, Evidence §§ 180, 1336; Trial §§ 528, 841,</bold> <bold>1760</bold>.</block_quote> <bold>16. Constitutional Law § 309 (NCI4th) — capital sentencing — counsel's</bold> <bold>concession of aggravating circumstance — record silent as to</bold> <bold>defendant's consent — no ineffective assistance of counsel</bold> <block_quote> Assuming <italic>arguendo</italic> that defendant's trial counsel conceded the existence of the sole aggravating circumstance submitted to the jury during his closing argument in a capital sentencing proceeding, this concession did not violate defendant's right to the effective assistance of counsel since (1) defendant's lack of consent to the argument will not be presumed from a silent record, and (2) the decision of <italic>State v. Harbinson</italic>, <cross_reference>315 N.C. 175</cross_reference>, which held that in cases in which defendant's trial counsel admits defendant's guilt to the jury without defendant's consent, the defendant has been denied the effective assistance of counsel <italic>per</italic> <italic>se</italic> in violation of the Sixth Amendment does not apply to sentencing proceedings.</block_quote> <block_quote> <bold>Am Jur 2d, Criminal Law §§ 732-753; Trial §§ 841, 1760,</bold> <bold>1947</bold>.</block_quote> <block_quote> <bold>When is attorney's representation of criminal defendant</bold> <bold>so deficient as to constitute denial of federal constitutional</bold> <bold>right to effective assistance of counsel — Supreme Court cases.</bold> <bold><cross_reference>83 L.Ed.2d 1112</cross_reference></bold>.</block_quote> <bold>17. Criminal Law § 1373 (NCI4th) — sentences of death not</bold> <bold>disproportionate</bold> <block_quote> Sentences of death imposed upon defendant for two first-degree murders were not excessive or disproportionate to the penalty imposed in similar cases where defendant was convicted of each count of first-degree murder under the theory of malice, premeditation, and deliberation, and the jury found as the sole aggravating circumstance that each murder was part of a course<page_number>Page 707</page_number> of conduct in which defendant engaged and which included the commission by defendant of other crimes of violence against another person or persons.</block_quote> <bold>Am Jur 2d, Criminal Law § 628; Trial §§ 841, 1760</bold>. <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty,</bold> <bold>to establish statutory aggravating circumstance that in</bold> <bold>committing murder, defendant created risk of death or</bold> <bold>injury to more than one person, to many persons, and the</bold> <bold>like — post-</bold><bold><italic>Gregg</italic></bold> <bold>cases. 64 ALR4th 837</bold>.</block_quote> <block_quote> <bold>Supreme Court's views on constitutionality of death</bold> <bold>penalty and procedures under which it is imposed.</bold> <bold><cross_reference>51 L.Ed.2d 886</cross_reference></bold>.</block_quote>