Volume 344 — North Carolina Reports

<bold>1. Jury § 110 (NCI4th) — first-degree murder — jury selection —</bold> <bold>individual voir dire denied</bold> The trial court did not abuse its discretion in a prosecution arising from a murder and robbery by denying defendant's motion for individual voir dire of prospective jurors where three prospective jurors made statements that they were predisposed to convict defendant, there is no indication that any other juror was influenced by their comments and all three were summarily dismissed or excused for cause. <bold>Am Jur 2d, Jury § 198</bold>. <bold>2. Jury § 115 (NCI4th) — first-degree murder — jury selection —</bold> <bold>rehabilitation of certain jurors denied — speculation as to</bold> <bold>rehabilitation — no error</bold> There was no abuse of discretion in a first-degree murder prosecution in not allowing defendant to rehabilitate certain prospective jurors where defendant, at most, speculated that by further examination he might have rehabilitated the jurors. <bold>Am Jur 2d, Jury §§ 201, 202</bold>. <bold>3.Criminal Law § 76 (NCI4th) — first-degree murder — change of venue</bold> <bold>denied — no error</bold> The trial court did not abuse its discretion in a first-degree murder prosecution by denying defendant's motion for a change of venue based on pretrial publicity where the trial court stated, after ten jurors had been selected, that only one had indicated that he had some opinion at a former time and that the rest did not have an opinion, and several had expressed only the vaguest knowledge of the case. Moreover, defense counsel expressly admitted in his argument to the trial court that his motion was not based on pretrial publicity. Defendant failed to identify a single juror objectionable to him who sat on the jury and did not carry his burden of showing a specific and identifiable prejudice requiring a change of venue. <bold>Am Jur 2d, Criminal Law §§ 361 et seq</bold>. <block_quote> <bold>Pretrial publicity in criminal case as ground for change of</bold> <bold>venue. 33 ALR3d 17</bold>.</block_quote><page_number>Page 80</page_number> <bold>Change of venue by state in criminal case. 46 ALR3d 295</bold>. <bold>4. Jury § 203 (NCI4th) — first-degree murder — jury selection — former</bold> <bold>deputy sheriff — prior discussions of case — challenge for cause</bold> <bold>denied</bold> The trial court did not err during jury selection for a first-degree murder prosecution by denying defendant's motion to excuse a prospective juror for cause where the juror stated that he was a former deputy sheriff, that he had discussed the case on several occasions, and that if one fact he was aware of became an aspect in the case it would have a strong impact on him and substantially impair his ability to make a fair and impartial decision, but upon further questioning stated clearly and unequivocally that he could put out of his mind what he had heard before and decide the case solely on what he heard in the courtroom. <bold>Am Jur 2d, Jury §§ 289, 291-294, 308</bold>. <block_quote> <bold>Former law enforcement officers as qualified jurors in criminal</bold> <bold>cases. 72 ALR3d 958</bold>.</block_quote> <bold>5. Evidence and Witnesses § 2817 (NCI4th) — first-degree murder —</bold> <bold>leading questions — directing attention toward matter being</bold> <bold>addressed</bold> The trial court did not err in a first-degree murder prosecution in allowing the State to ask questions which defendant contends were leading. Defendant did not object at trial to the majority of the questions; reviewed under the plain error standard with the overwhelming evidence against defendant, it cannot reasonably be believed that the questions resulted in error so fundamental that justice cannot have been done. The two questions to which defendant objected at trial merely directed the witness toward the specific matter being addressed without suggesting the desired answer. However, assuming that the questions were leading, there was no abuse of discretion in allowing the questions to be asked and answered. <bold>Am Jur 2d, Witnesses §§ 752-756</bold>. <bold>6. Evidence and Witnesses § 850 (NCI4th) — first-degree murder —</bold> <bold>testimony not hearsay — not prejudicial</bold> The trial court did not err in a first-degree murder prosecution by overruling objections to testimony which defendant contended<page_number>Page 81</page_number> was impermissible hearsay. The specific statements complained of either were not hearsay or were admissible under a recognized exception to the hearsay rule. Furthermore, even assuming that any statements were hearsay and not admissible under any recognizable exception, admission of the statements was harmless error because they could not have influenced the jury's decision. <bold>Am Jur 2d, Evidence §§ 668-703; Homicide §§ 329 et seq</bold>. <bold>7. Evidence and Witnesses § 1242 (NCI4th) — first-degree murder —</bold> <bold>voluntarily showing officers the murder weapon — in custody —</bold> <bold>warnings given — no error</bold> The trial court did not err in a first-degree murder prosecution by denying defendant's motion to suppress his inculpatory statement where an SBI agent and a deputy sheriff spoke with defendant at his home while defendant was under arrest; defendant was advised of his <italic>Miranda</italic> rights and indicated that he understood those rights; defendant subsequently indicated during questioning that he thought he could show the officers where the gun was located and agreed to do so; defendant appeared to be in control of his faculties and did not appear to be under the influence of any substance; no threats, promises, or other coercion or inducements were made to defendant; the sheriff testified that he was sitting on the porch when the deputy came out and told him that defendant was volunteering to locate the gun; defendant was not then handcuffed, was not questioned in the vehicle, and appeared to be acting voluntarily; and the sheriff stopped the car when defendant said to pull over. The testimony shows that defendant was fully informed of his rights, that he understood them, and that he voluntarily accompanied the sheriff to locate the gun. <bold>Am Jur 2d, Criminal Law §§ 785, 788 et seq.; Evidence §§ 643, 644</bold>. <bold>8. Evidence and Witnesses § 1356 (NCI4th) — first-degree murder —</bold> <bold>inculpatory statements — electronic recording not required</bold> There was no error in a first-degree murder prosecution in the admission of inculpatory statements which were not electronically recorded. The North Carolina Supreme Court has ruled<page_number>Page 82</page_number> against requiring the recordation of in-custody interrogation; thus, there is no presumption in North Carolina against the admissibility of statements obtained during in-custody interrogations. <bold>Am Jur 2d, Evidence § 718</bold>. <bold>9. Homicide § 230 (NCI4th) — first-degree murder — evidence sufficient</bold> The trial court did not err in a first-degree murder prosecution by denying defendant's motions to dismiss and for a directed verdict based on insufficient evidence. There was overwhelming evidence of defendant's guilt; two of three accomplices provided detailed eyewitness testimony, various witnesses placed the murder weapon in defendant's hand during and after the killings, scientific evidence showed conclusively that the bullets recovered from the bodies were fired from that weapon, and long-time friends of defendant testified that defendant confessed to them that he had committed the murders. <bold>Am Jur 2d, Homicide §§ 425 et seq</bold>. <bold>10. Criminal Law § 439 (NCI4th) — first-degree murder — prosecutor's</bold> <bold>argument — credibility of State's witnesses</bold> There was no gross impropriety in a first-degree murder prosecution where the trial court did not intervene <italic>ex mero motu</italic> during the prosecutor's closing argument regarding the credibility of the State's witnesses. The comments were more in the nature of giving the jury reason to believe the State's evidence than vouching for the credibility of the State's witnesses. <bold>Am Jur 2d, Trial §§ 692-704</bold>. <block_quote> <bold>Propriety and prejudicial effect of comments by counsel vouching for</bold> <bold>credibility of witness — state cases. 45 ALR4th 602</bold>.</block_quote> <bold>11. Criminal Law § 460 (NCI4th) — first-degree murder — prosecutor's</bold> <bold>argument — permissible inferences</bold> There was no gross impropriety in a first-degree murder prosecution where the prosecutor in his argument commented that an accomplice who testified against defendant had not attempted to cut a victim's throat. The pathologist testified that the victim had some scratches on his neck that might have been caused by a dull<page_number>Page 83</page_number> tool; it is therefore a permissible inference that the marks were not made by a razor. <bold>Am Jur 2d, Trial §§ 632-639</bold>. <bold>12. Criminal Law § 425 (NCI4th) — first-degree murder — prosecutor's</bold> <bold>argument — defendant's failure to introduce letter</bold> There was no gross impropriety in a first-degree murder prosecution where the prosecutor argued that a letter would have been read from the witness stand if it was exculpatory. A prosecutor may comment on a defendant's failure to produce exculpatory evidence to contradict or refute evidence presented by the State. <bold>Am Jur 2d, Trial §§ 605, 606</bold>. <bold>13. Criminal Law § 461 (NCI4th) — first-degree murder — prosecutor's</bold> <bold>argument — matters outside record — no prejudice</bold> There was no gross impropriety in a first-degree murder prosecution where defendant contended that the prosecutor injected matters outside the record in repeating statements about the victims being robbed; however, the jury found defendant not guilty as to the robbery charges and any such comments could not possibly have prejudiced defendant. <bold>Am Jur 2d, Trial §§ 609 et seq</bold>. <bold>14. Criminal Law § 465 (NCI4th) — first-degree murder — prosecutor's</bold> <bold>argument — misstatement of law — no prejudice</bold> There was no prejudice in a first-degree murder prosecution where defendant complained that the prosecutor misstated the law regarding acting concert, but the jury rejected that theory and found defendant guilty of murder based on premeditation and deliberation. These comments could not have prejudiced defendant. <bold>Am Jur 2d, Trial §§ 640 et seq</bold>.

<bold>1. Attorneys at Law § 12 (NCI4th) — comity applicant denied — character</bold> <bold>grounds — notice of questions to be asked at hearing</bold> A bar applicant whose application to the North Carolina Bar by comity was denied on character and fitness grounds was given adequate notice of the questions he was to be asked at his hearing before the Board of Law Examiners. The notice of hearing provided that the applicant had the burden of satisfying the Board that he had met all of the requirements of Section .0502 of the Rules Governing Admission to the Practice of Law in order to be licensed by comity and that inquiry could be made about the answers to any questions set out in the application. <bold>Am Jur 2d, Attorneys at Law § 15</bold>.<page_number>Page 143</page_number> <block_quote> <bold>Failure to pay creditors as affecting applicant's moral character for</bold> <bold>purposes of admission to the bar. 4 ALR4th 436</bold>.</block_quote> <block_quote> <bold>Falsehoods, misrepresentations, impersonations, and other</bold> <bold>irresponsible conduct as bearing on requisite good moral character for</bold> <bold>admission to bar. 30 ALR4th 1020</bold>.</block_quote> <block_quote> <bold>Conditioning reinstatement of attorney upon reaffirmation of debt</bold> <bold>discharged in bankruptcy. 39 ALR4th 586</bold>.</block_quote> <bold>2. Attorneys at Law § 12 (NCI4th) — comity application denied on fitness</bold> <bold>grounds — prior denial on character grounds</bold> There was no error in the denial of an application to the North Carolina Bar by comity on character grounds where the applicant contented that the Board of Law Examiners' determination in an earlier application that this applicant failed to demonstrate the required character and fitness was upheld by the North Carolina Supreme Court. The Court specified in <italic>In re Golia-Paladin</italic>, <cross_reference>327 N.C. 132</cross_reference>, that its decision was based solely on the applicant's failure to demonstrate that he met the practice requirements for comity admission and nothing in the Board's statement in this application suggests that the Court upheld the previous determination of bad character. Even if that had been suggested, the applicant has not indicated the relief to which he would be entitled. <bold>Am Jur 2d, Attorneys at Law § 15</bold>. <block_quote> <bold>Failure to pay creditors as affecting applicant's moral character for</bold> <bold>purposes of admission to the bar. 4 ALR4th 436</bold>.</block_quote> <block_quote> <bold>Falsehoods, misrepresentations, impersonations, and other</bold> <bold>irresponsible conduct as bearing on requisite good moral character for</bold> <bold>admission to bar. 30 ALR4th 1020</bold>.</block_quote> <block_quote> <bold>Conditioning reinstatement of attorney upon reaffirmation of debt</bold> <bold>discharged in bankruptcy. 39 ALR4th 586</bold>.</block_quote> <bold>3. Attorneys at Law § 13 (NCI4th) — comity application to Bar — denied on</bold> <bold>character grounds — failure to disclose material matters</bold> The Board of Law Examiners did not err in denying a comity application on character grounds by finding that the applicant<page_number>Page 144</page_number> failed to fully disclose material matters and made numerous untruthful statements about the number of times he had sat for various bar examinations, and that these statements had the effect of misleading and deceiving the Board. The Board's determination that the applicant's omissions evidence a lack of fairness and candor in dealing with the Board was reasonable based on the evidence, and the applicant's cavalier attitude toward gathering the information it was his duty to supply to the Board constitutes additional evidence from which the Board could conclude that his misstatements and omissions were purposeful. <bold>Am Jur 2d, Attorneys at Law § 15</bold>. <block_quote> <bold>Failure to pay creditors as affecting applicant's moral character for</bold> <bold>purposes of admission to the bar. 4 ALR4th 436</bold>.</block_quote> <block_quote> <bold>Falsehoods, misrepresentations, impersonations, and other</bold> <bold>irresponsible conduct as bearing on requisite good moral character for</bold> <bold>admission to bar. 30 ALR4th 1020</bold>.</block_quote> <block_quote> <bold>Conditioning reinstatement of attorney upon reaffirmation of debt</bold> <bold>discharged in bankruptcy. 39 ALR4th 586</bold>.</block_quote> <bold>4. Attorneys at Law § 12 (NCI4th) — comity application rejected —</bold> <bold>failure to provide documents relating to lawsuit by applicant</bold> The Board of Law Examiners did not err in rejecting a comity application on character grounds by determining that the applicant willfully failed to provide to the Board material documents concerning a class action lawsuit applicant brought against the New York State Grievance Committee and its members. Although the applicant contends that the complaint, which was provided, was the only pleading of substance and that the other matters in no way reflect upon his character or fitness to practice law, it is for the Board to determine whether an applicant's omission from his bar application is purposeful and whether that omission is sufficiently substantial to rebut the applicant's <italic>prima</italic> <italic>facie</italic> showing of good character. Here, the failure to disclose additional documents relating to the federal court litigation falls squarely within the Rules and the Board properly relied upon the failure to supply copies of the federal proceedings in denying the applicant a license. <bold>Am Jur 2d, Attorneys at Law § 15</bold>.<page_number>Page 145</page_number> <block_quote> <bold>Failure to pay creditors as affecting applicant's moral character for</bold> <bold>purposes of admission to the bar. 4 ALR4th 436</bold>.</block_quote> <block_quote> <bold>Falsehoods, misrepresentations, impersonations, and other</bold> <bold>irresponsible conduct as bearing on requisite good moral character for</bold> <bold>admission to bar. 30 ALR4th 1020</bold>.</block_quote> <block_quote> <bold>Conditioning reinstatement of attorney upon reaffirmation of debt</bold> <bold>discharged in bankruptcy. 39 ALR4th 586</bold>.</block_quote> <bold>5. Attorneys at Law § 12 (NCI4th) — comity application to Bar denied —</bold> <bold>lack of fairness and candor</bold> The Board of Law Examiners did not err in denying a comity application on character grounds by concluding that the applicant's denial of the charge in a New York zoning action that he resided in the basement of his New York office displayed "a lack of fairness and candor with the Court and had a tendency to deceive." Residency is a material issue in a comity application and it was in applicant's best interest to represent to the Board that he had continuously maintained a New York residence; however, when sued for violating the zoning ordinance, the applicant denied that he used his New York property as a residence and subsequently amended his North Carolina Bar application to avoid the appearance of a conflict. The Board had the opportunity to observe the applicant's demeanor during the hearing and its conclusion appears reasonable from the evidence. <bold>Am Jur 2d, Attorneys at Law § 15</bold>. <block_quote> <bold>Failure to pay creditors as affecting applicant's moral character for</bold> <bold>purposes of admission to the bar. 4 ALR4th 436</bold>.</block_quote> <block_quote> <bold>Falsehoods, misrepresentations, impersonations, and other</bold> <bold>irresponsible conduct as bearing on requisite good moral character for</bold> <bold>admission to bar. 30 ALR4th 1020</bold>.</block_quote> <block_quote> <bold>Conditioning reinstatement of attorney upon reaffirmation of debt</bold> <bold>discharged in bankruptcy. 39 ALR4th 586</bold>.</block_quote> <bold>6. Attorneys at Law § 12 (NCI4th) — comity application to Bar — denied</bold> <bold>on character grounds — action by applicant not illegal</bold> The State Bar did not err by denying a comity application on character grounds where the applicant contends that he was permitted<page_number>Page 146</page_number> to assert a temporary position as a defendant in a zoning case in order to improve his chances where the position asserted was not illegal. It has been held that an evidentiary showing rising to the level of a criminal offense or civil liability is not necessary in a Board proceeding to determine an applicant's moral fitness to practice law in North Carolina; material false statements can be sufficient to show that an applicant lacks the requisite character and general fitness for admission to practice law. <bold>Am Jur 2d, Attorneys at Law § 15</bold>. <block_quote> <bold>Failure to pay creditors as affecting applicant's moral character for</bold> <bold>purposes of admission to the bar. 4 ALR4th 436</bold>.</block_quote> <block_quote> <bold>Falsehoods, misrepresentations, impersonations, and other</bold> <bold>irresponsible conduct as bearing on requisite good moral character for</bold> <bold>admission to bar. 30 ALR4th 1020</bold>.</block_quote> <block_quote> <bold>Conditioning reinstatement of attorney upon reaffirmation of debt</bold> <bold>discharged in bankruptcy. 39 ALR4th 586</bold>.</block_quote>

<bold>Negligence § 108 (NCI4th) — guest at apartment complex stabbed —</bold> <bold>security company — no duty owed plaintiff</bold> Summary judgment was properly entered on behalf of defendant American Security and Investigation Systems in a negligence action where plaintiff was stabbed in the presence of defendant's security guard while visiting a tenant of an apartment complex. Common law distinctions between licensees and invitees are not determinative and, while the Restatement of Torts was cited by the Court of Appeals in concluding that defendant owed duties to plaintiff, the Restatement of Torts is not North Carolina law. The extent of the duty of defendant security company to plaintiff, if any, is governed by the contract between defendant and the management company, NPI, and neither the contract between defendant and NPI nor a memorandum from NPI imposed a duty on defendant to protect social guests of tenants at the complex. The fact that the guard was unarmed is further indication that neither defendant nor NPI contemplated that the guard would be required to intervene or attempt to prevent a criminal assault. The mere act of providing a security guard does<page_number>Page 161</page_number> not impose upon defendant any greater duties than those delineated under its contract to provide security services and did not impose upon the defendant any duty to prevent a criminal assault upon plaintiff. While several exceptions have been recognized to the general rule that declines to impose civil liability upon landowners for criminal acts committed by third persons, those exceptions have been limited to specific circumstances. <bold>Am Jur 2d, Premises Liability §§ 45 et seq</bold>. <block_quote> <bold>Comment Note. — Private person's duty and liability for failure to</bold> <bold>protect another against criminal attack by third person. 10 ALR3d 619</bold>.</block_quote> <block_quote> <bold>Liability of hotel or motel operator for injury to guest resulting</bold> <bold>from assault by third party. 28 ALR4th 80</bold>.</block_quote> <block_quote> <bold>Liability of owner or operator of shopping center, or business housed</bold> <bold>therein, for injury to patron on premises from criminal attack by third</bold> <bold>party. 31 ALR5th 550</bold>.</block_quote>

<bold>1. Criminal Law § 1348 (NCI4th) — capital murder — prospective</bold> <bold>jurors — instructions in outline of law — mitigating</bold> <bold>circumstances</bold> The trial court did not err in a capital first-degree murder prosecution by preliminarily instructing potential jurors in a summary of trial procedures and capital punishment that mitigating circumstances were "things that might tend to mitigate the offense." The jury considered twenty-two different mitigating circumstances, including the catchall provision, and the trial court instructed the jury that it should consider as mitigating circumstances any aspect of defendant's character or record, any circumstances of the murder, and any other circumstances arising from the evidence which it deemed to have mitigating value. There is no reason to believe that the jury failed to consider any mitigating evidence as a result of the trial court's definition. <bold>Am Jur 2d, Criminal Law §§ 598-600, 912; Trial § 841</bold>. <block_quote> <bold>Instructions to jury: Sympathy to accused as appropriate</bold> <bold>factor in jury consideration. 72 ALR3d 842</bold>.</block_quote> <block_quote> <bold>Validity of death penalty, under Federal Constitution, as</bold> <bold>affected by consideration of aggravating or mitigating</bold> <bold>circumstances — Supreme Court cases. <cross_reference>111 L.Ed.2d 947</cross_reference></bold>.</block_quote><page_number>Page 317</page_number> <bold>2. Criminal Law § 1326 (NCI4th) — capital murder — prospective</bold> <bold>jurors — outline of law — finding necessary for death</bold> <bold>penalty</bold> The trial court did not err in a capital first-degree murder prosecution in a four page summary of trial procedures and capital punishment given to prospective jurors where defendant argued that the court confused venire members by omitting the requirement that the jury consider defendant's mitigating evidence during the capital sentencing proceeding, thereby prejudicing defendant by misrepresenting the State's burdens of production and persuasion. The trial court properly instructed the jury on the three findings necessary to support the imposition of the death penalty — existence of any aggravating circumstances, substantiality of those aggravators, and failure of the mitigators to outweigh the aggravators. <bold>Am Jur 2d, Trial §§ 841, 1440-1449</bold>. <bold>3. Criminal Law § 1319 (NCI4th) — capital murder — instructions</bold> <bold>to prospective jurors — outline of law</bold> The trial court did not err in a capital first-degree murder prosecution in a four page summary of trial procedures and capital punishment given to prospective jurors where defendant argued that the instructions misstated the law by conveying to prospective jurors that they could not be opposed to the death penalty and at the same time be able to recommend the death sentence based on the evidence and the law, erroneously informed prospective jurors that they could not serve if they had any inclination to favor one punishment over another, and improperly focused the jury on sentencing. A trial court's instructions to the jury are to be construed contextually and isolated passages will not be deemed prejudicial when the charge as a whole is correct. Here the trial court's instructions were designed to inform members of the venire that both sides were looking for fair and impartial jurors who would follow the law by voting for punishment based upon the evidence. At least ten jurors were excused for cause after stating that their beliefs were so strong that they would be unable to follow the law, but no jurors expressing views against capital punishment but stating that they could follow the law were excused for cause. The instructions did not have the effect of prejudicing defendant's right to a fair and impartial jury. <bold>Am Jur 2d, Trial §§ 1441-1449</bold>.<page_number>Page 318</page_number> <bold>4. Jury § 145 (NCI4th) — capital murder — prospective jurors —</bold> <bold>outline of law — capital sentencing</bold> The trial court did not err in a first-degree murder prosecution in giving prospective jurors a four-page "Outline of the Law" where defendant argued that the outline dealt "exclusively" with capital sentencing with respect to a verdict for first-degree murder and that the instructions improperly emphasized sentencing. This outline included a substantial amount of information with respect to the guilt phase of the trial, including the relevant law on the presumption of innocence and the State's burden of proof. Furthermore, the court made it clear that the first duty of the jury was to determine defendant's guilt or innocence and that the discussion of sentencing issues was simply to help the jurors understand the jury selection process. The instructions about capital sentencing originated with the trial court in the interest of securing a fair and impartial jury; the court was merely acting to expedite the trial and did not err on these facts. <bold>Am Jur 2d, Trial §§ 1441-1449</bold>. <bold>5. Jury § 153 (NCI4th) — capital murder — jury selection —</bold> <bold>qualms about death penalty — question not improper</bold> The trial court did not err in a capital first-degree murder prosecution by allowing the prosecutor to ask during <italic>voir dire</italic> whether prospective jurors could write the word "death" and sign their names on the sentence recommendation form if chosen as a foreperson and the State proved the case beyond a reasonable doubt where the prosecutor subsequently peremptorily challenged jurors expressing hesitancy about returning a death sentence. Although defendant contended that these questions were not relevant under <italic>Witherspoon</italic> to the determination of a juror's fitness to serve and that the prosecutor's peremptory challenges went beyond <italic>Witherspoon</italic>, it has been held that it is not error for the prosecution to use peremptory challenges to excuse jury pool members who have qualms about the death penalty but who would not be excludable under <italic>Witherspoon</italic>. <block_quote> <bold>Am Jur 2d, Homicide §§ 513, 514, 522-524; Trial §§ 1118-1120,</bold> <bold>1441</bold>.</block_quote><page_number>Page 319</page_number> <bold>6. Jury § 103 (NCI4th) — capital murder — jury selection —</bold> <bold>individual voir dire and sequestration — denied</bold> The trial court did not err in a capital first-degree murder prosecution by denying defendant's motion for individual <italic>voir dire</italic> and sequestration of prospective jurors. The North Carolina Supreme Court has consistently denied relief on this basis and defendant has offered no convincing reason explaining how the denial of his motion may have harmed him. <bold>Am Jur 2d, Jury §§ 189-199, 204, 210</bold>. <block_quote> <bold>Right of counsel in criminal case personally to conduct the</bold> <bold>voir dire examination of prospective jurors. 73 ALR2d 1187</bold>.</block_quote> <bold>7. Constitutional Law § 353 (NCI4th) — capital murder — defense</bold> <bold>witness — assertion of privilege against self-incrimination</bold> There was no error in a capital murder prosecution in the trial court's denial of defendant's request to examine a defense witness on <italic>voir dire</italic> to ascertain whether he would invoke the privilege against self-incrimination. While defendant objected at trial to the witness's assertion of the privilege against self-incrimination in the presence of the jury, defendant raised for the first time on appeal the issue of the trial court's denial of his motion to question the witness on <italic>voir dire</italic>. <block_quote> <bold>Am Jur 2d, Criminal Law §§ 701 et seq., 936 et seq.;</bold> <bold>Witnesses §§ 172-174</bold>.</block_quote> <bold>8. Criminal Law § 682 (NCI4th) — capital murder — mitigating</bold> <bold>circumstances — mental and emotional disturbance —</bold> <bold>peremptory instructions denied</bold> The trial court did not err in a capital sentencing proceeding by not giving a peremptory instruction on the statutory mitigating circumstance of mental and emotional disturbance, N.C.G.S. § <cross_reference>15A-2000</cross_reference>(f)(2), where there was substantial evidence indicating that defendant became very angry and threatened to kill the victim upon learning that $250,000 worth of drugs and cash had been taken from him. The jury could find from the evidence that defendant's feelings of anger were not those of a disturbed individual, but the common reaction of<page_number>Page 320</page_number> one who has just had a great deal of money and property taken from him. <bold>Am Jur 2d, Criminal Law § 598</bold>. <bold>9. Criminal Law § 681 (NCI4th) — capital murder — mitigating</bold> <bold>circumstances — impaired capacity — peremptory instruction</bold> <bold>denied</bold> The trial court did not err in a capital sentencing proceeding by not giving a peremptory instruction on the statutory mitigating circumstance of impaired capacity, N.C.G.S. § <cross_reference>15A-2000</cross_reference>(f)(6), where there was substantial evidence that defendant's mental state was not such that his capacity to understand the events as they took place and to conform his conduct to the directives of the law was impaired. Defendant immediately investigated the theft of his drugs and money by going to the scene of the theft, interrogating potential witnesses, and searching the country for suspects; conceived a plan to evade capture in driving to another town, buying new clothes, and having one of his two girlfriends meet him and hide the weapons; and his mental ability was sufficient for him to have renewed his driver's license in 1992 and scored ninety-two out of one hundred on the written test. <bold>Am Jur 2d, Criminal Law § 598</bold>. <bold>10. Criminal Law § 680 (NCI4th) — capital murder — mitigating</bold> <bold>circumstances — age of defendant — peremptory instruction</bold> <bold>denied</bold> There was no plain error in a capital murder prosecution in the court's failure to give a peremptory instruction on the statutory mitigating circumstance of defendant's age. While defendant argues that the evidence as to the mitigating nature of his age (20) was uncontroverted, evidence at trial tended to show that defendant had previous criminal convictions and had served time in prison; that defendant was the kingpin of an elaborate drug syndicate with several "employees"; and that defendant provided for his mother, brother, and his girlfriend's family with the earnings from the drug operation. N.C.G.S. § <cross_reference>15A-2000</cross_reference>(f)(7). <bold>Am Jur 2d, Criminal Law §§ 598, 603</bold>. <block_quote> <bold>Validity of death penalty, under Federal Constitution, as</bold> <bold>affected by consideration of aggravating or mitigating</bold> <bold>circumstances — Supreme Court cases. <cross_reference>111 L.Ed.2d 947</cross_reference></bold>.</block_quote><page_number>Page 321</page_number> <bold>11. Criminal Law § 1362 (NCI4th) — capital murder — sentencing</bold> <bold>— mitigating circumstance of age — instructions</bold> The trial court did not err in a capital sentencing proceeding in its instruction on the mitigating circumstance of age where the court gave an instruction consistent with the pattern jury instruction which said that the mitigating effect of defendant's age is for the jury to determine from all the facts and circumstances. It was held in <italic>State v. Skipper</italic>, <cross_reference>337 N.C. 1</cross_reference>, that the requirement is that the jury may not refuse to consider any relevant mitigating evidence and that the language "mitigating effect" did not allow the jury to refuse to consider evidence about age as a mitigating circumstance. <bold>Am Jur 2d, Criminal Law § 598</bold>. <bold>12. Criminal Law § 1348 (NCI4th) — capital sentencing —</bold> <bold>instructions — sympathy</bold> The trial court did not err in a capital sentencing hearing by rejecting defendant's request that the jurors be instructed that they could base their recommendation upon any sympathy or mercy they may have for defendant arising from the evidence. It was held <italic>State v. Hill</italic>, <cross_reference>331 N.C. 387</cross_reference>, that the better course is to avoid mentioning sympathy in instructions concerning mitigating circumstances in capital sentencing proceedings. <bold>Am Jur 2d, Criminal Law §§ 598-600</bold>. <bold>13. Criminal Law § 1312 (NCI4th) — capital murder — sentencing</bold> <bold>— proof of prior conviction — testimony of court clerk</bold> The trial court did not abuse its discretion in a capital sentencing proceeding by admitting the testimony of a court clerk with respect to information in an indictment concerning a prior conviction of defendant. The State may present any competent evidence with respect to defendant's character or record that will substantially support the imposition of capital punishment and is not precluded from methods of proof of a prior conviction other than stipulation or original certified court record; however, the court may exercise discretion to ensure that the proof of aggravating circumstances does not become a mini-trial of the previous charges. Here, the jury was clearly cognizant of defendant's having pled guilty to an assault due to an admission on cross-examination and the victim's name and type of firearm was relevant, competent evidence properly admitted.<page_number>Page 322</page_number> The trial court prevented a mini-trial of the previous charge. <bold>Am Jur 2d, Evidence §§ 327-329</bold>. <bold>14. Criminal Law § 1348 (NCI4th) — capital murder — sentencing</bold> <bold>— instructions — definition of mitigating circumstances</bold> The trial court did not err in a capital sentencing proceeding by giving a definition of mitigation drawn directly from the relevant pattern jury instruction. <bold>Am Jur 2d, Criminal Law § 596</bold>. <bold>15. Criminal Law § 1373 (NCI4th) — death sentence — not</bold> <bold>disproportionate</bold> A death sentence was not disproportionate where the record fully supports the aggravating circumstance found by the jury, there is no indication that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary consideration, and the case is more similar to cases where the death sentence was found proportionate than to those in which the death penalty was found to be disproportionate or those in which juries have consistently recommended life imprisonment. Defendant spent the day at issue implementing a plan by interrogating suspects, patrolling the neighborhood and surrounding areas, and ambushing the victim and murdering him with an illegal machine gun. Defendant's televised exhibition of the technique by which he murdered the victim was a cavalier demonstration of his callousness and obliviousness to the value of human life. <bold>Am Jur 2d, Criminal Law § 628</bold>. <block_quote> <bold>Validity of death penalty, under Federal Constitution, as</bold> <bold>affected by consideration of aggravating or mitigating</bold> <bold>circumstances — Supreme Court cases. <cross_reference>111 L.Ed.2d 947</cross_reference></bold>.</block_quote>

<bold>1. Jury § 141 (NCI4th) — capital trial — jury voir dire —</bold> <bold>parole eligibility questions excluded</bold> Defendant was not denied due process by the trial court's refusal to allow defendant, who would be eligible for parole if given a life sentence, to question prospective jurors in a capital<page_number>Page 365</page_number> trial about their understanding of parole eligibility. The amendment to N.C.G.S. § <cross_reference>15A-2002</cross_reference> which requires the trial court to instruct the jury during a capital sentencing proceeding "that a sentence of life imprisonment means a sentence of life without parole" is to be applied prospectively after 1 October 1994 and was not applicable to defendant's trial where defendant committed the murder in 1992 and his trial began in February 1994. <bold>Am Jur 2d, Jury §§ 193, 199, 205, 206, 208</bold>. <block_quote> <bold>Right of Counsel in criminal case personally to conduct the</bold> <bold>voir dire examination of prospective jurors. 73 ALR2d 1187</bold>.</block_quote> <bold>2. Criminal Law § 1322 (NCI4th) — meaning of life</bold> <bold>imprisonment — questions by prospective jurors — response</bold> <bold>by court</bold> Where two prospective jurors in a capital trial asked the trial court the meaning of life in prison, the trial court properly responded that "for the purposes of this trial, life imprisonment means life in prison." <bold>Am Jur 2d, Trial §§ 1118, 1443, 1448</bold>. <block_quote> <bold>Prejudicial effect of statement or instruction of court as to</bold> <bold>possibility of parole or pardon. 12 ALR3d 832</bold>.</block_quote> <block_quote> <bold>Jury's discussion of parole law as ground for reversal or new</bold> <bold>trial. 21 ALR4th 420</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</bold> <bold>to review or correction by other authorities. 10 ALR5th 700</bold>.</block_quote> <bold>3. Evidence and Witnesses §§ 410, 663 (NCI4th) —</bold> <bold>conjectural identification testimony — motion to strike —</bold> <bold>absence of ruling</bold> Assuming that the trial court erred in failing to rule on defendant's motion to strike conjectural identification testimony placing defendant at a topless bar the night of a murder, defendant was not prejudiced where the trial court sustained defendant's objection to the testimony in the jury's presence, and both defendant and another witness testified that the two of them had walked past the topless bar on the night of the murder. <bold>Am Jur 2d, Evidence § 367; Trial § 163</bold>.<page_number>Page 366</page_number> <bold>4. Appeal and Error § 504 (NCI4th) — limitation of evidence</bold> <bold>to corroboration — invited error</bold> Where defendant unequivocally agreed that he offered an accomplice's out-of-court statements to a witness for purposes of corroboration, the trial court's limitation of the jury's consideration of the testimony to corroboration was invited error from which defendant cannot gain relief. Even if there was no invited error, defendant was not prejudiced where the same testimony was received from the witness on redirect examination without any limiting instruction. N.C.G.S. § <cross_reference>15A-1443</cross_reference>(c). <bold>Am Jur 2d, Appellate Review §§ 749-752, 754</bold>. <bold>5. Burglary and Unlawful Breakings § 150 (NCI4th) —</bold> <bold>first-degree burglary — instructions on occupancy — no</bold> <bold>plain error</bold> Where all the evidence presented by the State and by defendant in a first-degree burglary prosecution showed that defendant was unaware of his codefendant's initial breaking and entering of the victim's apartment, and defendant disputed only whether the victim was alive at the time he subsequently broke and entered the apartment with the codefendant to take the victim's television set, the trial court's instruction which appeared to require the jury to find that defendant participated in the initial breaking and entering with the codefendant in order to find that the apartment was occupied was favorable to defendant and not plain error. Moreover, defendant was not prejudiced by such instruction where the jury was clearly instructed that if the victim was not alive at the time defendant broke and entered her apartment, it could not find that the apartment was occupied. <bold>Am Jur 2d, Burglary §§ 67-69</bold>. <bold>6. Criminal Law §§ 412, 463 (NCI4th) — rape of murder</bold> <bold>victim — time of death — opening statement and closing</bold> <bold>argument — supporting evidence</bold> The prosecutor's opening statement that the pathologist's opinion would be that a murder victim "died right as the rape began or that she died during the rape," and his closing argument that if the victim was dead before the rape occurred, she had not been dead longer than five minutes, did not misconstrue the pathologist's testimony regarding the time of the victim's death as it related to the rape and was not improper where the pathologist<page_number>Page 367</page_number> testified that, based on the small amount of blood present, the victim "was either dead at the time of the rape or died soon after the rape began," and that while he could not give an exact time frame, if the victim died "just before the rape" it would have been within a "minute, five minutes." <bold>Am Jur 2d, Trial §§ 632-639</bold>. <bold>7. Criminal Law § 465 (NCI4th) — prosecutor's closing</bold> <bold>argument — definition of reasonable doubt — error cured by</bold> <bold>instructions</bold> Defendant's due process rights were not violated by any error in the prosecutor's definition of reasonable doubt when he stated in his closing argument that "too often jurors say, we know he's guilty, but the State didn't prove it" and that "If you know, then it was proved to you. That's beyond a reasonable doubt" where the trial court correctly instructed the jury as to reasonable doubt after the closing arguments. <bold>Am Jur 2d, Trial §§ 632-639</bold>. <bold>8. Larceny § 164 (NCI4th) — felonious larceny — omission</bold> <bold>of element in body of charge — inclusion in final mandate —</bold> <bold>no plain error</bold> The trial court's omission of the fifth element of felonious larceny (knowledge by defendant that he was not entitled to take the property) in the body of the charge did not create an internal conflict in the instructions when the court fully instructed as to all six elements of felonious larceny in the final mandate and was not plain error. <bold>Am Jur 2d, Larceny § 180</bold>. <bold>9. Criminal Law § 1323 (NCI4th) — capital sentencing —</bold> <bold>statutory mitigating circumstances — mitigating weight —</bold> <bold>erroneous instruction</bold> The trial court erred by instructing the jurors in a capital sentencing proceeding that they could elect to give a statutory mitigating circumstance no mitigating weight when it informed the jurors that if none of them "found the [statutory mitigating] circumstance to be mitigating," they would so indicate by instructing their foreman to write "no" in the space provided. <bold>Am Jur 2d, Trial §§ 840, 841, 1448, 1449</bold>.<page_number>Page 368</page_number> <block_quote> <bold>Instructions to jury: Sympathy to accused as appropriate</bold> <bold>factor in jury consideration. 72 ALR3d 842</bold>.</block_quote>

<bold>1. Constitutional Law § 344 (NCI4th) — capital murder — jury</bold> <bold>selection — judge's private conversation with juror —</bold> <bold>excusal for medical reasons</bold> A trial court's private, unrecorded conversation with a prospective juror outside defendant's presence in a capital first-degree murder prosecution was harmless beyond reasonable doubt. Assuming through inference that such a conversation occurred outside defendant's presence, defendant failed to object to the trial judge's reconstruction of his communications with the prospective juror and the prospective juror was properly excused for medical reasons. <bold>Am Jur 2d, Constitutional Law § 695</bold>. <block_quote> <bold>Postretirement out-of-court communications between</bold> <bold>jurors and trial judge as grounds for new trial or reversal</bold> <bold>in criminal case. 43 ALR4th 410</bold>.</block_quote> <bold>2. Jury § 190 (NCI4th) — capital murder — jury selection —</bold> <bold>denial of challenge for cause — preservation for appeal</bold> A defendant in a capital first-degree murder prosecution satisfied the mandates of N.C.G.S. § <cross_reference>15A-1214</cross_reference>(h) for preserving an assignment of error from a denial of a challenge for cause during jury selection where defendant challenged a prospective juror for cause; the trial court denied the challenge; defendant exhausted his peremptory challenges and renewed his challenge for cause as to that juror; and the trial court also denied that challenge. <bold>Am Jur 2d, Jury § 335</bold>. <bold>3. Jury § 205 (NCI4th) — capital murder — jury selection —</bold> <bold>acquaintance of victim and witnesses — ability to be fair</bold> <bold>and impartial — rejection of challenge for cause</bold> The trial court did not abuse its discretion during jury selection for a capital first-degree murder prosecution where a prospective juror was acquainted with the victim and prospective witnesses but never fluctuated in her clear and decisive answers to both the trial court and the prosecutor that she could remain a fair and impartial juror; when asked by defense counsel if she had<page_number>Page 446</page_number> any opinion as to what defendant's punishment should be, she responded, "No, because I don't know all the facts"; and the trial court in its discretion made the decision to reject defendant's challenge for cause after hearing the juror's responses, observing her demeanor, and assessing her credibility. <bold>Am Jur 2d, Jury § 300</bold>. <bold>4. Criminal Law § 395 (NCI4th) — capital murder — jury</bold> <bold>selection — remarks by judge — clarification of ambiguous</bold> <bold>answer — not expression of opinion</bold> The trial court did not express an opinion which might have improperly influenced other jurors and did not by its demeanor discourage other prospective jurors from disclosing any possible influence from factors outside the evidence during jury selection for a capital murder prosecution where one of the first twelve jurors seated stated that extrajudicial information could possibly influence his verdict. The trial judge alluded only to appropriate sources of evidence, in no way suggested how such evidence should be considered by the jurors, and did not convey any personal opinion which he may have had concerning the juror's sources of influence. The trial judge was simply clarifying an ambiguous admission by a prospective juror; it is mere speculation that the other prospective jurors were discouraged from disclosing any possible influence outside the evidence admitted at trial due to the trial judge's remarks. <bold>Am Jur 2d, Trial §§ 276, 277, 280</bold>. <bold>5. Criminal Law § 370 (NCI4th) — capital murder — scars on</bold> <bold>witness's wrists — judge's comment on relevancy</bold> There was no prejudicial error in a capital murder prosecution where defendant's mother testified that she had attempted suicide by slitting her wrists thirty times, defense counsel requested permission for defendant's mother to show the jury her wrists, and the trial court said, "I guess so. I don't see how that's relevant, but step down and show them your wrists." Whether the witness had scars on her wrists was not a question of fact for the jury to decide and the trial court's comment was not directed at the relevance of her alleged suicide attempts as mitigating evidence, but more likely at the relevance of the witness having to show the jury the scars on her wrists as evidence of her suicide attempts. Furthermore, the trial court submitted and the jury<page_number>Page 447</page_number> found as a mitigating circumstance that defendant witnessed physical and verbal abuse of his mother, her abuse of drugs and alcohol, and an attempted suicide; thus it is obvious that the trial court did not persuade the jury that the suicide attempts were irrelevant at the sentencing phase. <bold>Am Jur 2d, Trial § 280</bold>. <bold>6. Criminal Law § 1363 (NCI4th) — capital</bold> <bold>sentencing — requested instructions — nonstatutory mitigating</bold> <bold>circumstances</bold> There was no prejudicial error in a capital sentencing proceeding by refusing to submit specific requested nonstatutory mitigating circumstances where defendant was not denied the benefit of any of his proposed nonstatutory mitigating circumstances. Those that were supported by the evidence were submitted to the jury in substance and those that were not supported by the evidence were not submitted to the jury. Viewed contextually, the substance of the mitigating circumstances that defendant requested were subsumed into other submitted mitigating circumstances, including the catchall mitigating circumstance, and the jury was not precluded from considering any of defendant's mitigating evidence. <bold>Am Jur 2d, Criminal Law §§ 598, 599</bold>. <block_quote> <bold>Propriety, in imposing sentence for original offense</bold> <bold>after revocation of probation, of considering acts because</bold> <bold>of which probation was revoked. 65 ALR3d 1100</bold>.</block_quote> <block_quote> <bold>What constitutes playing "mitigating role" in offense</bold> <bold>allowing decrease in offense level under United States</bold> <bold>Sentencing Guideline § <cross_reference>3B1.2</cross_reference>, 18 USCS Appendix. 100 ALR</bold> <bold>Fed. 156</bold>.</block_quote> <bold>7. Evidence and Witnesses §§ 764, 714 (NCI4th) — capital</bold> <bold>murder — questions as to defendant's sexual orientation —</bold> <bold>not answered — instruction to disregard statement</bold> There was no prejudicial error in a capital first-degree murder prosecution where the prosecutor asked the first twelve veniremembers whether someone's sexual persuasion would have any bearing on their decision and the court sustained defendant's immediate objection; the prosecutor asked defendant's aunt on cross-examination whether she had heard that<page_number>Page 448</page_number> defendant was a homosexual; the trial court sustained defendant's objection and instructed the jury to disregard the statement; the prosecutor asked whether the aunt knew defendant's sexual persuasion; defense counsel objected and the trial court sustained the objection. The prosecutor's questions were never answered; moreover, our system is based upon the assumption that trial jurors are women and men of character and sufficient intelligence to fully understand and comply with proper instructions of the court not to consider certain evidence and they are presumed to have done so. <bold>Am Jur 2d, Trial § 1120</bold>. <bold>8. Robbery § 138 (NCI4th) — capital murder and armed</bold> <bold>robbery — charge on larceny denied — no error</bold> The trial court did not err in a prosecution for first-degree murder and robbery with a firearm by failing to submit the lesser included offense of larceny where the State introduced substantial evidence of defendant's guilt of robbery with a firearm and there is no evidence to support defendant's contention that he formed the intent to take the victim's property at a time which could not be part of a continuous transaction. <bold>Am Jur 2d, Robbery § 75</bold>. <bold>9. Criminal Law § 1357 (NCI4th) — capital sentencing — mitigating</bold> <bold>circumstances — mental or emotional disturbance —</bold> <bold>instructions — use of conjunctive</bold> There was no plain error in a capital sentencing proceeding in the trial court's use of the conjunctive in listing supporting evidence when instructing on the mitigating circumstance that the murder was committed while defendant was under the influence of mental or emotional disturbance. The instruction clearly comported with defendant's evidence, and the court also instructed the jury that it was enough that defendant's mind or emotions were disturbed from any cause and that he was under the influence of the disturbance when he killed the victim. The instruction did not preclude the jury from considering mitigating evidence. <bold>Am Jur 2d, Criminal Law § 599</bold>. <block_quote> <bold>Modern status of test of criminal responsibility — state</bold> <bold>cases. 9 ALR4th 526</bold>.</block_quote><page_number>Page 449</page_number> <block_quote> <bold>What constitutes playing "mitigating role" in offense</bold> <bold>allowing decrease in offense level under United States</bold> <bold>Sentencing Guideline § <cross_reference>3B1.2</cross_reference>, 18 USCS Appendix.</bold> <bold>100 ALR Fed. 156</bold>.</block_quote> <bold>10. Criminal Law § 1160 (NCI4th) — robbery — Fair</bold> <bold>Sentencing — aggravating factor — age of victim</bold> The trial court did not err when sentencing defendant for robbery by finding the aggravating factor that the victim was very old. Although defendant contended that there was no evidence that the victim was more vulnerable to the commission of the offense by reason of his age, the victim was somewhere between seventy-two and seventy-seven years old at the time of the murder; he suffered from emphysema and relied on inhalers at all times; he had limited use of one arm and weighed only ninety-three pounds at the time of the autopsy; and the victim had provided defendant with shelter, food, cigarettes, beer, and transportation when defendant had nowhere else to go. The victim's age, physical disabilities, and stature made him vulnerable and an inviting target for the physically superior twenty-eight-year-old defendant;. N.C.G.S. § 15A-1340.4 (a)(1)j (1988). <bold>Am Jur 2d, Criminal Law §§ 598, 599</bold>. <bold>11. Criminal Law § 1373 (NC14th) — death sentence —</bold> <bold>proportionate</bold> A sentence of death for a first-degree murder was not disproportionate where the evidence fully supports the aggravating circumstance 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, the sentence of death was not disproportionate based on the nature of the crime, and this case is more similar to cases in which the death sentence was found proportionate than to those in which the sentence was found disproportionate or those in which juries have consistently returned recommendations of life imprisonment. The evidence tended to show that the victim, an elderly man with poor health, had befriended the twenty-eight-year old defendant, taken him into his home, and offered him respect and goodwill; defendant took the victim's belongings and attained money by using his personal checks throughout several days following the murder while leaving the victim's body in the recliner in which he was murdered; and the victim was killed in the solace of his own home.<page_number>Page 450</page_number> <bold>Am Jur 2d, Criminal Law § 628</bold>. <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty,</bold> <bold>to establish statutory aggravating circumstance that murder</bold> <bold>was heinous, cruel, 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,</bold> <bold>to establish statutory aggravating circumstance that murder</bold> <bold>was committed for pecuniary gain, as consideration or</bold> <bold>in expectation of receiving something of monetary value,</bold> <bold>and the like — post-</bold><bold><italic>Gregg</italic></bold> <bold>cases. 66 ALR4th 417</bold>.</block_quote>

<bold>1. Constitutional Law § 344.1 (NCI4th) — capital murder</bold> <bold>— bench conferences — no error</bold> The trial court did not err in a capital first-degree murder prosecution by conducting unrecorded bench conferences out of defendant's presence or in the absence of defense counsel where the record does not affirmatively show that defense counsel did not attend the bench conferences in question and reflects that defense counsel actually requested many of the conferences in question. Even assuming that one or more of these conferences occurred outside the presence of defendant or his counsel, any error was harmless because the court documented the subject matter of these conferences and the record demonstrates that none of these conferences implicated defendant's right to confrontation. <bold>Am Jur 2d, Criminal Law §§ 695, 696, 910 et seq</bold>. <bold>2. Criminal Law § 78 (NCI4th) — capital murder —</bold> <bold>pretrial publicity — change of venue denied — no</bold> <bold>error</bold> The trial court did not err in a capital first-degree murder prosecution by denying defendant's motion for a change of venue for pretrial publicity where the trial court found that the media coverage of the circumstances of the crime was factual and that the media response to the incident was predominantly noninflammatory; defendant did not allege or attempt to prove that he was required to accept any juror who did not<page_number>Page 543</page_number> unequivocally state that he or she could put aside any pretrial information and decide the case solely on the evidence presented at trial; defendant concedes that the jurors who were selected advised the trial court that they could set aside pretrial publicity; and the trial court conducted an individual examination of each juror and excused those who gave an equivocal answer regarding putting pretrial information aside. <bold>Am Jur 2d, Criminal Law §§ 378, 389</bold>. <block_quote> <bold>Pretrial publicity in criminal case as ground for change</bold> <bold>of venue. 33 ALR3d 17</bold>.</block_quote> <bold>3. Homicide § 257 (NCI4th) — capital murder —</bold> <bold>killing of police officer with officer's weapon — evidence</bold> <bold>of premeditation and deliberation — evidence sufficient</bold> The trial court did not err in a capital first-degree murder prosecution arising from the shooting of two police officers by denying defendant's motion to dismiss the charges. Although defendant specifically argues that there was insufficient evidence that the killing of Officer Burnette was premeditated and deliberate, the State's evidence tended to show that defendant's intent changed sometime during his struggle with the officers from a mere attempt to flee to the killing of the officers to further his escape; defendant made the concerted effort to seize Officer Burnette's weapon, yank it from its holster, look down upon Officer Nobles, who was lying at his feet, and shoot him in the back of the head; and, having killed Nobles, defendant simply turned to the fallen officer Burnette, placed the barrel of the gun against the left side of Officer Burnette's head, and shot him. <bold>Am Jur 2d, Homicide §§ 437 et seq</bold>. <block_quote> <bold>Homicide: presumption of deliberation or premeditation</bold> <bold>from the circumstances attending the killing. 96 ALR2d 1435</bold>.</block_quote> <block_quote> <bold>Modern status of the rules requiring malice</bold> <bold>"aforethought," "deliberation," or "premeditation," as elements</bold> <bold>of murder in the first degree. 18 ALR4th 961</bold>.</block_quote> <bold>4. Homicide § 495 (NCI4th) — capital murder —</bold> <bold>deliberation — instructions</bold> The trial court did not err in a capital murder prosecution by refusing to instruct the jury on the elements of<page_number>Page 544</page_number> premeditation and deliberation pursuant to defendant's request where the only substantive difference between the instruction given and defendant's requested instruction is that defendant's requested instruction requires the "deliberation" to occur before the scuffle or quarrel began, which is an incorrect statement of the law. Deliberation may occur during a scuffle or a quarrel between the defendant and the victim if the emotions produced by the scuffle or quarrel have not overcome defendant's faculties and reason. <bold>Am Jur 2d, Homicide § 501</bold>. <bold>5. Evidence and Witnesses § 2148 (NCI4th) — capital</bold> <bold>murder — police procedure — expert testimony excluded</bold> <bold>— no abuse of discretion</bold> The trial court did not abuse its discretion in a capital first-degree murder prosecution by excluding expert defense testimony about whether the victims, police officers, were following proper police procedures at the time they were murdered. The evidence tended to show that defendant started backing up when first approached by officers, then ran because he thought he had crack cocaine in his possession; clearly, defendant was not responding reasonably to arrest procedures and the witness's opinion about what the proper arrest procedures might have been was irrelevant to the circumstances of the case. Furthermore, defendant's offer of proof did not reveal that the witness would testify that the officers used excessive force. The testimony could only have directed the jury's attention away from defendant's actual conduct and confused it with evidence unrelated to the legality of the arrest or the force used in attempting to apprehend defendant. <bold>Am Jur 2d, Expert and Opinion Evidence §§ <cross_reference>1-7</cross_reference>, 32-38, 43</bold>. <block_quote> <bold>When will expert testimony "assist trier of fact" so as</bold> <bold>to be admissible at federal trial under Rule 702 of Federal Rules</bold> <bold>of Evidence. 75 ALR Fed. 461</bold>.</block_quote> <block_quote> <bold>Evidence offered by defendant at federal criminal trial</bold> <bold>as inadmissible, under Rules 403 of Federal Rules of Evidence, on</bold> <bold>ground that probative value is substantially outweighed by danger</bold> <bold>of unfair prejudice, confusion of issues, or misleading the jury.</bold> <bold>76 ALR Fed. 700</bold>.</block_quote><page_number>Page 545</page_number> <bold>6. Jury § 260 (NCI4th) — capital murder — jury</bold> <bold>selection — peremptory challenges — Batson challenge</bold> There was no error in a capital murder prosecution in the prosecutor's use of peremptory challenges where the prosecutor used eight of his fourteen peremptory challenges to remove black venire members, leaving only one black juror sitting on the final jury, and defendant specifically argues that the court permitted the prosecutor to peremptorily challenge two black females for a pretextual reason. The prosecutor gave reasons for the dismissal of each juror, so that the question of whether defendant met his initial burden of showing discrimination need not be addressed, and, with respect two the two black females, the prosecutor offered as reasons for excusing the first her youth and immaturity, along with concern about her residence (the YWCA) and her change in response regarding knowledge about the case. As for the second, she had small children, she expressed reservations about job security and loss of income, the prosecutor could not get her to elaborate when she said she did not oppose the death penalty, and the prosecutor felt she would hold the State to a higher burden than the law requires. There was sufficient evidence to support the trial court's finding that the reasons proffered by the prosecutor were race-neutral. <bold>Am Jur 2d, Jury §§ 235, 244</bold>. <block_quote> <bold>Use of peremptory challenges to exclude ethnic and racial</bold> <bold>groups, other than black Americans, from criminal jury —</bold> <bold>post</bold>-<bold><italic>Batson</italic></bold> <bold>state cases. 20 ALR5th 398</bold>.</block_quote> <block_quote> <bold>Use of peremptory challenges to exclude ethnic and racial</bold> <bold>groups, other than black Americans, from criminal jury —</bold> <bold>post</bold>-<bold><italic>Batson</italic></bold> <bold>federal cases. 110 ALR Fed. 690</bold>.</block_quote> <bold>7. Evidence and Witnesses §§ 1688, 1694, 1700 (NCI4th) —</bold> <bold>capital murder of police officers — photographs of victims</bold> <bold>— appearance in life, at scene, autopsy</bold> The trial court did not abuse its discretion in the capital first-degree murder prosecution of defendant for the murder of two police officers by overruling defense objections to the introduction of photographs of the victims. Two of the ten photographs were introduced to illustrate the testimony of the victims' relatives regarding the victims' appearance in life, two more were used to illustrate the testimony of police officers who<page_number>Page 546</page_number> carried the victims to the hospital, and the medical examiner used the remaining six photographs to illustrate his testimony. Whether the use of photographic evidence is excessive in light of its illustrative value and whether the evidence is more probative than prejudicial are matters generally left to the sound discretion of the trial court. <bold>Am Jur 2d, Evidence §§ 971, 972; Homicide §§ 417 et seq</bold>. <block_quote> <bold>Admissibility in homicide prosecution of allegedly</bold> <bold>gruesome or inflammatory visual recording of crime scene.</bold> <bold>37 ALR5th 515</bold>.</block_quote> <bold>8. Evidence and Witnesses § 1501 (NCI4th) — capital</bold> <bold>murder — killing of police officers — introduction of</bold> <bold>their clothes</bold> The trial court did not err in a prosecution for capital first-degree murder arising from the killing of two police officers by allowing the introduction of the bloody clothes of both officers The condition of the officers' clothing tended to show the circumstances surrounding the struggle with defendant, the location and number of wounds, and the officers' relative sizes. Bloody clothing of a victim that is corroborative of the prosecutor's case, is illustrative of the testimony of a witness, or throws any light on the circumstances of the crime is relevant and admissible evidence at trial. <bold>Am Jur 2d, Homicide § 413</bold>. <bold>9. Criminal Law § 1312 (NCI4th) — capital sentencing</bold> <bold>— prior record — anecdotal evidence</bold> The trial court did not err in a capital sentencing proceeding by allowing presentation of anecdotal evidence regarding defendant's prior criminal record and bad acts. Although defendant argued that he was willing to stipulate to having a previous criminal record and that the prosecutor is limited to proving those convictions through prior convictions, the use of witnesses in a capital sentencing proceeding to prove the circumstances of prior convictions has been approved. <bold>Am Jur 2d, Criminal Law § 598 et seq</bold>.<page_number>Page 547</page_number> <bold>10. Criminal Law §§ 1357, 1360 (NCI4th) — capital</bold> <bold>sentencing — instructions — impaired capacity —</bold> <bold>mental or emotional disturbance — use of conjunctive in</bold> <bold>each</bold> There was no plain error in a capital sentencing proceeding where defendant argued that the use of the conjunctive in instructions on impaired capacity and mental or emotional disturbance impaired the jury's consideration of relevant mitigating evidence. The court's instruction allowed the jury to consider either or both of defendant's psychological problems in the context of the mental or emotional circumstance. With respect to the impaired capacity circumstance, an expert in forensic psychiatry testifying for defendant did not testify that either one of defendant's disorders alone resulted in impaired capacity but that defendant's capacity to appreciate the criminality of his conduct was impaired because he was suffering from both schizotypical personality disorder and crack cocaine addiction. Both of the trial court's instructions therefore comported with defendant's evidence. <bold>Am Jur 2d, Criminal Law §§ 598 et seq., 628</bold>. <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty,</bold> <bold>to establish statutory aggravating circumstance that murder was</bold> <bold>committed to avoid arrest or prosecution, to effect escape from</bold> <bold>custody, to hinder governmental function or enforcement of law,</bold> <bold>and the like — post</bold>-<bold><italic>Gregg</italic></bold> <bold>cases. 64 ALR4th 755</bold>.</block_quote> <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty,</bold> <bold>to establish statutory aggravating circumstance that defendant</bold> <bold>was previously convicted of or committed other violent offense,</bold> <bold>had history of violent conduct, posed continuing threat to</bold> <bold>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</bold> <bold>establish statutory aggravating circumstance that murder was</bold> <bold>committed in course of committing, attempting, or fleeing from</bold> <bold>other offense, and the like — post</bold>-<bold><italic>Gregg</italic></bold> <bold>cases.</bold> <bold>67 ALR4th 887</bold>.</block_quote> <bold>11. Criminal Law § 496 (NCI4th) — capital sentencing</bold> <bold>— jury's request to review transcript denied — no</bold> <bold>plain error</bold> There was no plain error in a capital sentencing proceeding where the trial court denied the jury's request for a<page_number>Page 548</page_number> transcript of defendant's testimony and the testimony of defense experts in forensic psychiatry and psychopharmacology. The trial court was aware that it had discretion to produce the transcript and the record shows that the trial court exercised its discretion when deciding not to honor the jury's request. Also, it is clear that the trial court had decided that justice would be better served if the jury deliberations were not delayed to produce the requested transcripts and the trial court's instruction that the jurors rely upon their individual and collective memory of the testimony is indicative of further exercise of its discretion. <bold>Am Jur 2d, Trial §§ 1577, 1578, 1580, 1671</bold>. <block_quote> <bold>Permitting documents or tape recordings containing</bold> <bold>confessions of guilt or incriminating admissions to be taken into</bold> <bold>jury room in criminal case. 37 ALR3d 238</bold>.</block_quote> <bold>12. Criminal Law § 486 (NCI4th) — capital sentencing</bold> <bold>— publicity concerning another crime during deliberations</bold> <bold>— no voir dire</bold> The trial court did not abuse its discretion in a capital sentencing proceeding arising from the murder to two Charlotte police officers by failing to conduct a jury <italic>voir dire</italic> regarding extensive publicity in the local media concerning shootings of two South Carolina officers during the jury's deliberations. The trial court is in the best position to know whether or to what extent matters extraneous to the trial might affect the jury and to take proper precautions to protect the defendant's right to a fair trial. The trial court's decisions on these issues will not be disturbed on appeal absent an abuse of discretion. <bold>Am Jur 2d, Trial §§ 1546, 1547</bold>. <block_quote> <bold>Juror's reading of newspaper account of trial in state</bold> <bold>criminal case during its progress as ground for mistrial, new</bold> <bold>trial, or reversal. 46 ALR4th 11</bold>.</block_quote> <bold>13. Criminal Law § 1348 (NCI4th) — capital sentencing</bold> <bold>— mitigation — definition</bold> The trial court did not err in a capital sentencing proceeding in its definition of mitigating circumstances where defendant contended that the court defined mitigation too narrowly and limited mitigation to evidence which was extenuating<page_number>Page 549</page_number> or which reduced defendant's moral culpability. Defendant's contention has been consistently rejected. <bold>Am Jur 2d, Criminal Law §§ 598 et seq., 628</bold>. <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty, to</bold> <bold>establish statutory aggravating circumstance that murder was</bold> <bold>committed to avoid arrest or prosecution, to effect escape from</bold> <bold>custody, to hinder governmental function or enforcement of law,</bold> <bold>and the like — post</bold>-<bold><italic>Gregg</italic></bold> <bold>cases. 64 ALR4th 755</bold>.</block_quote> <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty,</bold> <bold>to establish statutory aggravating circumstance that defendant</bold> <bold>was previously convicted of or committed other violent offense,</bold> <bold>had history of violent conduct, posed continuing threat to</bold> <bold>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</bold> <bold>establish statutory aggravating circumstance that murder was</bold> <bold>committed in course of committing, attempting, or fleeing from</bold> <bold>other offense, and the like — post</bold>-<bold><italic>Gregg</italic></bold> <bold>cases.</bold> <bold>67 ALR4th 887</bold>.</block_quote> <bold>14. Criminal Law § 1373 (NCI4th) — death sentence</bold> <bold>— not disproportionate</bold> A sentence of death was not disproportionate where the record fully supported the aggravating circumstances found by the jury and there was no indication that the sentences of death were imposed under the influence of passion, prejudice, or any other arbitrary consideration. The evidence in this case clearly shows that defendant deliberately murdered two police officers for the purpose of evading a lawful arrest. The North Carolina Supreme Court has consistently noted that it has never found disproportionality in a case in which the defendant was convicted of killing more than one victim; there is no doubt that defendant took the weapon from one officer's holster for the purpose of shooting both officers; there is no doubt that prior to his encounter with the officers defendant stole a van and robbed and threatened two victims; and the jury found that defendant murdered the officers to avoid arrest and that he had been engaged in a course of conduct which included crimes of violence against others. The jury's finding of the prior conviction of a<page_number>Page 550</page_number> violent felony aggravating circumstance is significant; none of the cases in which the death sentence was found to be disproportionate included this aggravating circumstance. The present case is more similar to certain cases in which the sentence of death was found proportionate than to those in which the sentence was found disproportionate or to those in which juries have consistently returned recommendations of life imprisonment. <bold>Am Jur 2d, Criminal Law § 628</bold>.

<bold>1. Jury § 266 (NCI4th) — capital resentencing — swearing of</bold> <bold>jury</bold> There was no plain error in a capital resentencing where defendant alleged that the case was not tried before a jury duly sworn in open court in the presence of defendant and his counsel. Defendant admits that he was present for the selection and impaneling of the jury and does not contend that he was not physically present when the jurors were given their oath of office. To the extent that the record shows anything, it shows that the jurors were duly sworn and defendant presents no evidence to the contrary. <bold>Am Jur 2d, Jury §§ 217 et seq</bold>. <bold>2. Evidence and Witnesses § 1693 (NCI4th) — capital resentencing</bold> <bold>— photographs of victim — admissible</bold> The trial court did not err in a capital resentencing proceeding by admitting into evidence seven photographs where defendant argued that the photographs were introduced to prove that the killing was done in an especially heinous, atrocious, or cruel manner, an aggravating circumstance which the first jury had rejected. The photographs were neither cumulative nor excessive in number and their probative value was not substantially outweighed by the danger of unfair prejudice. Although some of the photographs were gruesome, they were relevant to illustrate the circumstances of the killing and tended to establish that the murder was committed during the commission of a sexual offense, which supported the N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e)(5) circumstance. <bold>Am Jur 2d, Homicide §§ 417 et seq</bold>. <block_quote> <bold>Admissibility in evidence of enlarged photographs or</bold> <bold>photostatic copies. 72 ALR2d 308</bold>.</block_quote> <block_quote> <bold>Admissibility of photograph of corpse in prosecution</bold> <bold>for homicide or civil action for causing death.</bold> <bold>73 ALR2d 769</bold>.</block_quote><page_number>Page 640</page_number> <bold>3. Criminal Law § 1343 (NCI4th) — capital resentencing —</bold> <bold>especially heinous, atrocious, or cruel circumstance —</bold> <bold>rejected at first hearing — references by prosecutor</bold> There was no plain error in a capital resentencing where the previous jury had rejected the especially heinous, atrocious, or cruel aggravating circumstance, the trial court in this proceeding had granted defendant's motion that this circumstance not be allowed, and defendant argued that the prosecutor impermissibly called attention to the especially heinous, atrocious, or cruel aggravating circumstance by repeatedly referring to sexual "sadism" and "torture" during cross-examination of two defense witnesses and by repeatedly characterizing the case as "unique" during jury <italic>voir dire</italic>. A jury in a capital sentencing proceeding may consider all the circumstances surrounding the killing; the prosecutor did not mention the especially heinous, atrocious, or cruel language during the presentation of the evidence or the cross-examination of the defense witnesses. The prosecutor's repeated use of the word "unique" during jury <italic>voir dire</italic> was not so grossly improper as to require the court to intervene <italic>ex mero</italic> <italic>motu</italic>. <bold>Am Jur 2d, Criminal Law §§ 598 et seq</bold>. <bold>4. Criminal Law § 452 (NCI4th) — capital resentencing —</bold> <bold>especially heinous, atrocious or cruel aggravating circumstance</bold> <bold>not allowed — prosecutor's argument — references to</bold> <bold>torture and sadism</bold> A prosecutor's argument in a capital resentencing hearing was not so grossly improper as to require the trial court to intervene <italic>ex mero motu</italic>, and did not lead the jury to return a sentence of death based on passion, prejudice, or other arbitrary factors, where the previous jury had rejected the especially heinous, atrocious, or cruel aggravating circumstance and the court in this proceeding had granted defendant's motion that this circumstance not be allowed, but defendant alleges that the prosecutor described defendant's offenses in ways that suggested the murder was especially heinous, atrocious, or cruel. Although the prosecutor's argument included repeated references to torture and sadism, neither the prosecutor nor the judge used the especially heinous, atrocious, or cruel language and the jury was not confused as to what aggravating circumstances it could consider. <bold>Am Jur 2d, Trial §§ 648 et seq</bold>.<page_number>Page 641</page_number> <block_quote> <bold>Supreme Court's views as to what courtroom statements</bold> <bold>made by prosecuting attorney during criminal trial</bold> <bold>violate due process or constitute denial of fair trial.</bold> <bold><cross_reference>40 L.Ed.2d 886</cross_reference></bold>.</block_quote> <bold>5. Criminal Law § 1303 (NCI4th) — capital resentencing — jury</bold> <bold>selection — prosecutor's statements</bold> There was no error in a capital resentencing so grossly improper as to require the trial court to intervene <italic>ex mero motu</italic> where defendant contended that; the prosecutor engaged in a series of lectures by which he attempted to establish rapport with the jurors and that, while technically accurate, the prosecutor's statements were unduly prejudicial because the statements led the jurors to expect a large number of mitigating circumstances and to believe that mitigating circumstances have less value than aggravating circumstances. The trial court had no opportunity to correct any perceived errors in the statements, the trial court properly instructed the jury regarding the aggravating and mitigating circumstances, and the law to be applied was as stated by the court rather than by the attorneys. The jury was not misled and its recommendation was not unduly influenced by the prosecutor's statements during <italic>voir dire</italic>. <bold>Am Jur 2d, Criminal Law § 600</bold>. <bold>6. Criminal Law § 352 (NCI4th) — capital resentencing —</bold> <bold>defendant seen in leg irons — no plain error</bold> There was no plain error in a capital resentencing where the trial court did not err by not conducting an inquiry and not declaring a mistrial <italic>ex mero motu</italic> when a panel of prospective jurors was allowed to see defendant in leg irons. Defendant was not shackled or bound while in the courtroom, but may have been seen in restraints by prospective jurors as he was brought through the lobby of the courthouse. The jury was aware that this was a sentencing proceeding and that defendant's guilt had been determined, as he had been previously convicted of first-degree murder, and being temporarily observed in restraints did not infringe on defendant's presumption of innocence, since there was no such presumption. <bold>Am Jur 2d, Criminal Law §§ 844-846</bold>. <block_quote> <bold>Propriety and prejudicial effect of gagging, shackling,</bold> <bold>or otherwise physically restraining accused during course</bold> <bold>of state criminal trial. 90 ALR3d 17</bold>.</block_quote><page_number>Page 642</page_number> <bold>7. Jury § 141 (NCI4th) — capital resentencing — jury</bold> <bold>selection — parole eligibility — questions not allowed</bold> The trial court did not err in a capital resentencing by denying defendant's motion to question potential jurors concerning parole eligibility. <bold>Am Jur 2d, Jury §§ 205, 206</bold>. <block_quote> <bold>Propriety and effect of asking prospective jurors hypothetical</bold> <bold>questions, on voir dire, as to how they would</bold> <bold>decide issues of case. 99 ALR2d 7</bold>.</block_quote> <bold>8. Criminal Law § 1322 (NCI4th) — capital resentencing —</bold> <bold>parole eligibility — jury question — instruction</bold> The trial court did not err in a capital resentencing by informing the jury, in response to specific questions from the jury, that eligibility for parole is not a proper matter for the jury to consider and that it should determine the question of death as though life imprisonment means exactly what the statute says. <bold>Am Jur 2d, Trial §§ 286, 1443</bold>. <block_quote> <bold>Procedure to be followed where jury requests information</bold> <bold>as to possibility of pardon or parole from sentence</bold> <bold>imposed. 35 ALR2d 769</bold>.</block_quote> <bold>9. Criminal Law § 1312 (NCI4th) — capital resentencing —</bold> <bold>aggravating circumstance — previous conviction involving</bold> <bold>violence — 1976 California plea</bold> There was no prejudicial error in a capital resentencing where the State introduced in support of the aggravating circumstance of a previous conviction involving violence a copy of a 1976 California change of plea and order indicating that defendant had pleaded guilty to one count of armed robbery with a .22 caliber pistol, that defendant had pleaded guilty to a second count of felony robbery, and that two additional armed robbery charges had been dropped. Assuming that the exhibit would not have been admissible over a proper objection, its admission did not impact the jury's recommendation in light of the evidence that was properly admitted and the fact that the jury was properly instructed. Additionally, defense counsel admitted the existence of this aggravating circumstance in his argument to the jury. <bold>Am Jur 2d, Criminal Law § 328</bold>.<page_number>Page 643</page_number> <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty,</bold> <bold>to establish statutory aggravating circumstance that murder</bold> <bold>was heinous, cruel, depraved, or the like — post</bold>-<bold><italic>Gregg</italic></bold> <bold>cases. 63 ALR4th 478</bold>.</block_quote> <bold>10. Criminal Law § 1373 (NCI4th) — death penalty — not</bold> <bold>disproportionate</bold> A sentence of death was proportionate where the record fully supported the two aggravating circumstances found by the jury, and there is no indication that the sentence of death in this case was imposed under the influence of passion, prejudice, or any other arbitrary consideration. The victim was found dead in her home, with bite marks on her breasts, her inner thighs bruised, her head covered by a pillow, and a telephone inserted inside her vagina; there were signs of both manual and ligature strangulation which was determined to be the cause of death; and defendant had been convicted previously of armed robbery, a violent felony. This case has the characteristics of first-degree murders for which the death penalty has been upheld. <bold>Am Jur 2d, Criminal Law § 628</bold>. <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty,</bold> <bold>to establish statutory aggravating circumstance that murder</bold> <bold>was heinous, cruel, 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,</bold> <bold>to establish statutory aggravating circumstance that</bold> <bold>defendant was previously convicted of or committed other</bold> <bold>violent offense, had history of violent conduct, posed continuing</bold> <bold>threat to society, and the like — post-</bold><bold><italic>Gregg</italic></bold> <bold>cases.</bold> <bold>65 ALK4th 838</bold>.</block_quote>

<bold>1. Homicide § 253 (NCI4th) — first-degree murder</bold> <bold>— premeditation and deliberation — injuries suffered</bold> <bold>by child</bold> The State's evidence was sufficient to support an inference of premeditation and deliberation by defendant and thus to support submission of an issue of defendant's guilt of first-degree murder where the evidence tended to show that defendant's two-year-old stepdaughter was brutally beaten by defendant, during which time she received multiple, extensive blows to numerous areas of her body; the pathologist testified that the victim ultimately died from internal bleeding due to severe tearing of her liver and pancreas; the victim suffered six external injuries to her head, at least three injuries to her chest, injuries to her pelvis, hip bone, eye, and forehead, and bruises on her arms and right thigh; and the pathologist opined, based upon the pattern and extent of these injuries, that the injuries could not have been caused by an accidental fall from a high chair as defendant maintained, but that they were caused by multiple blows from a fist. <bold>Am Jur 2d, Homicide §§ 52, 228, 266, 268, 439, 501</bold>.<page_number>Page 690</page_number> <block_quote> <bold>Modern status of the rules requiring malice</bold> <bold>"aforethought," "deliberation," or "premeditation," as elements</bold> <bold>of murder in the first degree. 18 ALR4th 961</bold>.</block_quote> <bold>2. Evidence and Witnesses § 1685 (NCI4th) — victim's</bold> <bold>injuries — photographs and slides not repetitious or</bold> <bold>excessive</bold> Photographs and slides introduced by the State in a prosecution of defendant for the murder of his two-year-old stepdaughter were neither repetitious nor unfairly prejudicial where the first photograph illustrated testimony by the victim's mother about the victim's appearance at the hospital; the second photograph illustrated testimony by the victim's mother about an indentation in a wall where defendant had punched his fist following an argument about the way defendant reprimanded the victim; three other photographs depicted external injuries to the victim's body and illustrated the testimony of several paramedics who first responded to assist the victim; and eight autopsy slides, each of which depicted a separate area of the victim's body, were admitted to illustrate the pathologist's testimony concerning the nature and extent of the victim's external injuries. <block_quote> <bold>Am Jur 2d, Evidence §§ 960-967; Homicide §§ 416-419;</bold> <bold>Trial §§ 507, 1678</bold>.</block_quote> <block_quote> <bold>Prejudicial error in admission in evidence of colored</bold> <bold>photographs. 53 ALR2d 1102</bold>.</block_quote> <block_quote> <bold>Admissibility of photograph of corpse in prosecution for</bold> <bold>homicide or civil action for causing death. 73 ALR2d 769</bold>.</block_quote> <bold>3. Evidence and Witnesses § 1693 (NCI4th) — autopsy</bold> <bold>photograph not authenticated — absence of prejudice</bold> Assuming <italic>arguendo</italic> that the trial court erred by admitting an autopsy photograph on the ground that it was not properly authenticated as a fair and accurate representation of the victim's mouth and lips at the time she received treatment from emergency medical personnel, defendant was not unfairly prejudiced by its admission where the photograph illustrated the pathologist's testimony concerning injuries to the victim's head and neck; the pathologist testified that the apparent injury to the victim's mouth and lips appeared to be the natural degenerative process of drying of the lips; and there was substantial evidence<page_number>Page 691</page_number> showing multiple blunt-force impact injuries over the victim's entire body. <block_quote> <bold>Am Jur 2d, Evidence §§ 960-967; Homicide §§ 416-419;</bold> <bold>Trial §§ 507, 1678</bold>.</block_quote> <block_quote> <bold>Prejudicial error in admission in evidence of colored</bold> <bold>photographs. 53 ALR2d 1102</bold>.</block_quote> <block_quote> <bold>Admissibility of photograph of corpse in prosecution for</bold> <bold>homicide or civil action for causing death. 73 ALR2d 769</bold>.</block_quote> <bold>4. Evidence and Witnesses § 1958 (NCI4th) — medical</bold> <bold>records — triage nurse's report — insufficient</bold> <bold>authentication</bold> A triage nurse's report was not sufficiently authenticated to be admissible as part of the medical records the pathologist relied upon to formulate his opinion as to a murder victim's injuries where the pathologist was unable to state with certainty that he had either read the document or relied upon it in preparing his autopsy report, he was not the custodian of the nurse's report, and he was unaware of the circumstances under which the report had been maintained. <bold>Am Jur 2d, Evidence §§ 933, 1032-1048</bold>. <block_quote> <bold>Admissibility under Uniform Business Records as Evidence</bold> <bold>Act or similar statute of medical report made by consulting</bold> <bold>physician to treating physician. 69 ALR3d 104</bold>.</block_quote> <block_quote> <bold>Physician-patient privilege as extending to patient's</bold> <bold>medical or hospital records. 10 ALR4th 552</bold>.</block_quote> <bold>5. Jury § 222 (NCI4th) — death penalty views —</bold> <bold>excusal for cause</bold> The trial court in a capital trial did not err by excusing for cause a prospective juror who stated in response to questions by the trial court and the prosecutor that she did not think she could vote for the death penalty. <bold>Am Jur 2d, Jury §§ 228, 229</bold>. <block_quote> <bold>Comment Note. — Beliefs regarding capital punishment</bold> <bold>as disqualifying juror in capital case — post-Witherspoon</bold> <bold>cases. 39 ALR3d 550</bold>.</block_quote><page_number>Page 692</page_number> <bold>6. Jury § 226 (NCI4th) — death penalty views —</bold> <bold>excusal for cause — no opportunity for rehabilitation</bold> The trial court in a capital trial did not err by excusing prospective jurors for cause on the basis of their death penalty views without allowing defendant an opportunity to rehabilitate them where the excused jurors clearly and unequivocally stated that their opposition to the death penalty would cause them to vote against its imposition under any circumstances; defendant did not request an opportunity to rehabilitate any of the prospective jurors; and there was no showing that further questioning by defendant would have produced different answers. <bold>Am Jur 2d, Jury §§ 228, 229</bold>. <block_quote> <bold>Comment Note. — Beliefs regarding capital punishment</bold> <bold>as disqualifying juror in capital case — post</bold>-<bold><italic>Witherspoon</italic></bold> <bold>cases. 39 ALR3d 550</bold>.</block_quote> <bold>7. Evidence and Witnesses § 2267 (NCI4th) —</bold> <bold>pathologist's testimony — cause of death — "homicidal</bold> <bold>assault"</bold> The trial court did not err by permitting a pathologist's testimony that the child victim died as a result of a "homicidal assault" where the pathologist testified on <italic>voir dire</italic> that he used this term to characterize the victim's death in order to differentiate it from death resulting from injuries sustained over a period of time; the term "homicidal assault" was not a legal term of art and did not correlate to a criminal offense; and the testimony related to a proper opinion for an expert in the field of forensic pathology. <bold>Am Jur 2d, Evidence § 351; Trial § 720</bold>. <block_quote> <bold>Necessity and effect, in homicide prosecution, of expert</bold> <bold>medical testimony as to cause of death. 65 ALR3d 283</bold>.</block_quote> <block_quote> <bold>Admissibility of testimony of coroner or mortician as to</bold> <bold>cause of death in homicide prosecution. 71 ALR3d 1265</bold>.</block_quote> <bold>8. Criminal Law § 683 (NCI4th) — capital sentencing</bold> <bold>— no significant criminal history — stipulation</bold> <bold>— mandatory peremptory instruction required</bold> The trial court erred by failing to give a mandatory peremptory instruction on the N.C.G.S. § <cross_reference>15A-2000</cross_reference> (f)(1) mitigating circumstance that defendant had no significant history of prior criminal activity where the State and defendant stipulated that<page_number>Page 693</page_number> defendant had no significant history of prior criminal activity. Because of the stipulation, whether defendant had a significant history of prior criminal activity was not a factual matter for the jury to determine, and the trial court should have instructed the jury that the (f)(1) circumstance existed as a matter of law and must be given weight. <bold>Am Jur 2d, Trial § 1169</bold>. <block_quote> <bold>Construction of statutes or rules making mandatory the use</bold> <bold>of pattern or uniform approved jury instructions. 49 ALR3d 128</bold>.</block_quote>